05.21.12

‘The Bachelor’ and ‘The Bachelorette’: Inside the Racial Discrimination Lawsuit

Any TV viewer with eyes has noticed The Bachelor’s and The Bachelorette’s persistent whiteness. Can a class-action lawsuit force the shows to become diverse? Jennifer L. Pozner reports .

Skinny, weepy white women  +  horny, wealthy white men  =  love.

That calculus has governed casting on The Bachelor since its 2002 debut on ABC. Ten years, one spinoff (The Bachelorette), and 24 seasons later, every star of TV’s oldest reality romance franchise has been white. So were 22 of the 25 hopefuls on The Bachelorette’s Season 8 premiere last week. With that history, it came as no surprise that we heard almost no dialogue from the lone black contestant, Lerone, or that Southern blonde Emily Maynard sent him packing at the end of the episode. (On Twitter, one viewer suggested a #MenOfColorCountdown to see how long the Brazilian grain merchant and Colombian mushroom farmer will last.)

Now, a racial discrimination lawsuit aims to prove that this casting math isn’t only faulty—it’s illegal.

On April 18, two African-American men, Nathaniel Claybrooks and Christopher Johnson, filed a class-action suit alleging that ABC; the shows’ production companies, Warner Horizon, Next Entertainment, NZK Productions; and the shows’ creator, Mike Fleiss, “knowingly, intentionally, and as a matter of corporate policy refused to cast people of color in the role of The Bachelor and The Bachelorette.” The complaint charges that this “intentional scheme” of “deliberate exclusion … underscores the significant barriers that people of color continue to face in the media and the broader marketplace.”

Fans, bloggers, reporters, and TV critics have blasted the series’ diversity shortfall for years (I have, too, in Reality Bites Back). A Newsweek headline from February 2010 wondered, “A Black President Before a Black Bachelor?” Shawn Ryan, creator of The Shield and The Chicago Code, has tweeted about the show’s “straight up racism.” And in January 2011, Access Hollywood asked ABC entertainment president Paul Lee whether viewers would ever see a Bachelor of color. His reply was noncommittal: “I would hope so, yes.” Since then, the network has done nothing to realize Lee’s programmatic “hope.”

Cyrus Mehri, an attorney representing Claybrooks and Johnson, wants their lawsuit finally to force the issue. That doesn’t mean compelling ABC to install either plaintiff as the 17th Bachelor. Instead, they’re looking for structural solutions to a pattern of bias. “Legally, we’re seeking programming policy changes regarding how they select people,” Mehri told The Daily Beast. “And they have to give people of color the chance to compete on equal footing without regards to their race.”

Mehri may want substantive change, but some industry veterans doubt the case will have much impact. “You’ll probably see a few more black women get eliminated in the first episode. It’s sad but it’s true,” said a former Bachelor staffer. Now producing reality shows for another network, he predicts artistic freedom will trump legal arguments over diversity. “I don’t think you can legislate content. It’s a creative community. Lawsuits involving the creative process, it typically goes badly.”

This suit is about contracts, not content. The case rests on the Civil Rights Act of 1866, the post–Civil War statute enacted to ensure freed slaves the ability to play active roles in commerce. The suit alleges that contracts have been denied to candidates of color for fear they’d negatively affect ratings and ad revenue, thereby violating Supreme Court rulings. “As a matter of law, defendants cannot justify their exclusion of racial minorities on the perceived racial biases of members of their television audience or their advertisers,” the complaint argues.

For a franchise whose casts resemble the segregated 1960s South, it is perhaps fitting that the class action is based on the same legal principles used to desegregate businesses during the modern civil-rights movement. “It’s a well-established area of the law. What’s new about it is it is being applied in the reality-TV setting,” Mehri said.

That’s why this case is “potentially groundbreaking,” said Berkeley professor and entertainment lawyer Russell Robinson. “Courts have consistently rejected customer-preference arguments. But because of issues of creative freedom, the entertainment industry operates untethered to the rules of antidiscrimination law,” he said. If it survives discovery to reveal internal emails, conversations, and casting call descriptions that include discriminatory remarks or assumptions about viewer and sponsor biases, Robinson said, “the lawsuit could change the industry in a significant way.”

Warner Horizon calls the lawsuit “baseless and without merit,” claiming “the producers have been consistently—and publicly—vocal about seeking diverse candidates for both programs.” The show recently met with sportscaster and basketball coach Lamar Hurd, whose video campaign to become “The First Black Bachelor” went viral weeks before the lawsuit was filed, and has garnered media buzz.

Yet one look at all 16 Bachelors seems to support the allegation that their persistent paleness “is no accident.” Producers twice sought talent abroad—an Italian prince starred in Season 9, a British businessman in Season 12—but have still been unable to identify one black, Latino, Asian, Middle Eastern, or Native American man attractive enough to play Prince Charming.

The first and most enduring unscripted dating series, The Bachelor/ette has influenced reality-TV’s evolution, and the role of people of color within the genre. It set an early template for how women would be stereotyped as man-hungry bitches, and how people of color would be marginalized, tokenized, and typecast. Kim’s Fairytale Wedding on E! was just a Kardashian retread of Trista and Ryan’s Wedding, the first Bachelorette couple’s nuptials. VH1’s modern-day minstrel show, Flavor of Love, wouldn’t have existed without The Bachelor, acknowledged in the series premiere when its star yelled, “I know y’all heard of that show called The Bachelor. Flavor Flav is The Black-chelorrrrrrrrrr.”

How did The Bachelor/ette become so dominant? In an Entertainment Weekly interview cited in the lawsuit, creator Mike Fleiss said, “The romance space is ours” in part because “we cast more relatable people.” Asked if any of those stars would ever be nonwhite, Fleiss was dismissive: “I think Ashley [the seventh Bachelorette] is one 16th Cherokee Indian, but I cannot confirm. But that is my suspicion! We really tried, but sometimes we feel guilty of tokenism. Oh, we have to wedge African-American chicks in there!” 

Indeed, producers are usually careful to “wedge in” at least one or two black, Latino, or Asian contestants among the initial 25 competitors. But they’re given comparatively little screen time and then disappear quickly—just like Lerone from the latest Bachelorette. It wasn’t until Season 6 that a black woman made it past the third episode. And in 23 seasons, only two people of color, both Latino, won the chance to become a Bachelor and Bachelorette’s future ex-fiancé.

Pressed by EW to explain his 0-in-23 record, the executive producer shifted the blame to applicants: “We always want to cast for ethnic diversity. It’s just that for whatever reason, they don’t come forward. I wish they would.”

“Nonsense. Frankly, that’s a dodge,” said St. Petersburg Times TV critic Eric Deggans, author of Race Baiter. Deggans described a “feedback loop” in which the continued invisibility of minority cast members deters people of color from applying, and probably also from watching. “The shows won’t get diverse on their own. They have to make active choices to make it happen,” he said.

According to the former Bachelor staffer, most male stars have been actively recruited, but men of color were overlooked. “In my experience on the show, there was a conversation among the staff like, ‘Does anyone know a guy with a good job? Let us know.’ The inside joke was that the whole show is Mike [Fleiss] trying to replicate himself with these alpha-male types,” he said. Calls to Fleiss and Next Entertainment were not returned. ABC and NZK declined to comment.

Female leads are cast in a more insular process. Like Emily Maynard, every Bachelorette already shed tears (and usually clothes) as a finalist on a previous season of The Bachelor, leaving virtually no opportunity for women of color to hand out the long-stems.

Recruiting less homogenous contestant pools could change that. Medical student Tina Wu, one of the few Asian-Americans ever to appear on either series, did not apply to date the10th Bachelor, naval doctor Andy Baldwin—producers courted her. “I received an email from a casting company in Los Angeles over MySpace asking if I wanted to be on the show. An Asian nurse dropped out so they had to find a replacement,” Wu said, adding that she believes “it would be easy to recruit [contestants] of color. I just don’t think they want to.”

Such hesitance may be based on misplaced fears of audience and advertiser resistance to interracial relationships. The Bachelor/ette lags behind the public’s increasingly accepting attitudes about sex, love, and race. Eighty-three percent of Americans approved of interracial dating in 2009, compared with 48 percent in 1987. And by 2010, one in 10 heterosexual marriages, 18 percent of straight unmarried couples, and 21 percent of same-sex couples were interracial.

Janice Rhoshalle Littlejohn, coauthor of Swirling: How to Date, Mate and Relate Mixing Race, Culture and Creed, says fear of interracial romance is self-defeating. “Can you imagine if there were an Asian Bachelorette, or if half the women vying for a white Bachelor’s rose were African-American or Latina? Women everywhere would be watching, tweeting, posting every hand-hold, every rose petal, every episode,” she said.

The Bachelor/ette also has social consequences, said Littlejohn. “Race still matters in this country, and this [is partly] why African-American women don’t mix-marry as often as other women.” Deggans agreed, noting that the franchise’s whitewashed fantasies send people of color the message that what is possible for white America is not available to them.

Fleiss’s former Bachelor employee isn’t concerned with societal impact. “I realize this completely contradicts the FCC thing about being in service to the community, but I don’t think there’s any responsibility other than to entertain, and maximize profit for shareholders,” he said. But he does believe The Bachelor/ette is missing an economic opportunity. “They’re trying to second-guess their 18–49 female demographic. And then they’re stunned when Tyler Perry becomes a major force … Basketball Wives is the most-talked-about show in social media. Think Like a Man opened at $33 million.”

A high-level programming executive at a competing network disagrees. While it is “very important that our air be as diverse as possible in terms of gender, color, and sexual preference,” he said on condition of anonymity, “of all the franchises where this has to be handled sensitively [The Bachelor] is the one. Because there are a million landmines. The black Bachelor could eliminate all the women of color right away. Now who’s gonna be pissed? There’s so many problems.”

How many? Enough that he used the phrases “destroy the franchise” and “damage the franchise” seven times in one interview. “Let’s say ABC or Mike Fleiss says, ‘OK, you’re right. We’re wrong.’ And let’s say they cast an African-American male as The Bachelor, and half the women are white and half are African-American or other women of color. You don’t think there are groups that will go batshit over that?” he said. “Then let’s say they do it, and let’s say the ratings plummet by 40 percent. Does Mike have the right to sue the people suing him and say, ‘You forced me to destroy the franchise?’”

There’s a limit to how much change can be expected from a franchise whose creator believes his shows are successful because “It’s a lot of fun to watch girls crying.”

“I’m glad it’s ABC and not us,” he said with a laugh. “Seriously, let them deal with it.”

Internal network debates aren’t enough for attorney Mehri, who is pushing for immediate policy shifts. He also claims “social justice” among the lawsuit’s goals. “Reality TV is part of the social fabric of the country,” he said, and his clients “are doing their small part to help America become more inclusive, more tolerant.” That’s a stretch for a series built on regressive gender politics, whose female contestants declare themselves great wife material because, for instance, “I would be a servant to him.” On The Bachelorette premiere, Emily described her five-year plan as “a minivan full of babies!”

There’s a limit to how much change can be expected from a franchise whose creator believes his shows are successful because “it’s a lot of fun to watch girls crying” and that audiences have to “like the guy and hate the girls.” Nevertheless, “The Bachelor owns a piece of the pop-culture landscape no matter how sexist it is, so anything that could make it less unfair is positive,” Deggans said. To those who wonder why diversity matters in a series that perpetuates stereotypes, Deggans has a simple response: “People of color should have the right to suck, too!”

Editor’s Note: An earlier version of this story said that it wasn’t until Season 6 of The Bachelor that a black woman made it past the second episode. It should have said third episode.