CBS has filed a motion to dismiss a lawsuit challenging its diversity hiring practices specifically for the show “SEAL Team.” The lawsuit was filed by Brian Beneker, a script coordinator on the show, who claims he was passed over for writing jobs because he is a straight, white man. Beneker is supported by America First Legal, an organization led by Stephen Miller that opposes diversity, equity, and inclusion programs in the entertainment industry and other corporations. CBS argues that it has a First Amendment right to choose who speaks on its behalf, which takes precedence over anti-discrimination laws. Molly Lens, a partner at O’Melveny & Myers, states that CBS’s decision to prioritize diversity in its writers’ rooms is protected by the First Amendment.
In a similar case involving Disney, the company argued that it had a First Amendment right to fire actress Gina Carano after she made a social media post that allegedly trivialized the Holocaust. Both Disney and CBS referenced legal cases to support their arguments that the government cannot force a private entity to hire individuals with conflicting views. CBS pointed to a race discrimination lawsuit against ABC in 2011 related to casting decisions for “The Bachelor,” which was dismissed by the judge citing the producers’ First Amendment rights. CBS has set a goal to increase Black, Indigenous, and People of Color (BIPOC) representation in its writers’ rooms, with a target of 40% in 2021-22 and 50% in 2022-23.
A report by the Writers Guild of America West found that BIPOC writers made up 37% of overall TV series staffing in 2020, showing an increase from 13.6% a decade earlier. Beneker’s lawsuit against CBS alleges that the company’s diversity hiring goal constitutes an illegal hiring quota. The lawsuit also claims that white, heterosexual men like him are required to have additional qualifications, such as military experience or prior writing credits, compared to nonwhite, female, or LGBTQ writers who do not need these qualifications. The suit argues that this hiring policy violates the Civil Rights Act of 1964 and seeks to prevent CBS from implementing the policy and require the show to hire Beneker as a producer.
CBS acknowledges that the First Amendment does not exempt it from anti-discrimination laws but argues that the First Amendment takes precedence when hiring individuals for roles like writers or actors that involve expressive conduct. Molly Lens states that CBS has the right to determine what stories to tell in its television programming and to select the best-suited writers to tell those stories. The legal battle between CBS and Beneker highlights the ongoing debates surrounding diversity hiring practices, freedom of speech, and the intersection of entertainment and social justice issues in the industry.
