The guys discuss the new California law that allows actors to request the removal of their date of birth and birthdays on their IMDB page and why they think the law won’t last. They also discuss how age discrimination claims arise for business owner.
Full Podcast Transcript
NASIR: Welcome to Legally Sound Smart Business!
My name is Nasir Pasha.
MATT: And I’m Matt Staub.
Both attorneys here with Pasha Law.
NASIR: Yeah, practicing in the states of California, Texas, New York, and Illinois.
I’m going to try to do different, you know how we have an intro that we try to stick with but we try to change it up so what I’m going to do is I’m going to change the order of the states.
MATT: Yeah. So, you have 12, 26 different, you can do that 26 times.
NASIR: Is that right?
NASIR: Can someone check that? I don’t believe Matt.
MATT: Sorry, no, 24 times. I don’t know.
NASIR: I’ll confirm that by the end of the show.
MATT: Ah, man, bad math on this Thursday. It must be the heat.
I’ll introduce the podcast. Like I said, this is Legally Sound Smart Business. We discuss current businesses with a legal twist. Last week, I actually was joking about talking about Brad Pitt. Today, it’s actually applicable to what we’re talking about because there’s a new law or a new legislation that’s been passed in California to go into effect January 1st 2017 that deals with actors such as Brad Pitt.
Now, let me see. You know how I like to read pieces of statutes because I think it’s very uneventful for the listener but to get this point across.
NASIR: I hope you don’t read the whole thing.
MATT: No, I’m just going to read this piece here.
The premise – from a layman’s perspective – is allowing actors to not have their age or birthday listed on their IMDB page if they don’t want to, generally speaking.
NASIR: Keep in mind – and Matt is going to read it – the statute doesn’t say IMDB, of course. Go ahead.
MATT: Yeah, but it’s pretty obvious.
So, a commercial online entertainment employment service provider that enters into a contractual agreement to provide employment services to an individual or a subscription payment shall not, upon request of the subscriber, do either of the following… and then we get to publish their subscriber’s date of birth or age or share the subscriber’s date of birth or age information in any internet website for the purpose of publication.
That’s what people want to read because there’s so many words in there. That’s more combinations and permutations in our four states in different order.
NASIR: I feel like that’s why I’m not getting hired for any big acting jobs.
So, this is one of my issues with this right off the bat is one of the main arguments for this law is that it essentially allows age discrimination because, supposedly, people that are staffing for a movie or TV show can go to this person’s IMDB page, see their age, and say, “Oh, they’re too old.” But, to me, I don’t think that’s how it works. We’ve all seen plenty of shows. It’s all about how old or young you look, not how old or young you actually are, in my opinion.
NASIR: That’s probably true for certain actors but I think, if you’re starting out or still in a class C or D or E or lower letter than that of a celebrity or an actor, then I think age probably does matter because they’re probably like, “Okay, I want a 25-year-old that has this certain look.” Casting directors may have that criteria so I understand it from that perspective. But, yeah, if you’re an actor like me, you don’t really care about my age so long as you have my pretty face on the screen.
MATT: Yeah, I guess that’s one thing I didn’t know of how the process worked.
In your example, let’s say they want a 25-year-old whatever – 23 to 27-year-old – do they go to the talent agent and give them those numbers? Is there a hard search of those numbers that fits in or is it someone who looks that way?
I actually have some friends who are in the industry. I probably should have tried to get them online to know how it all works. They probably wouldn’t tell us anyway but I guess that’s why, if it’s the case where they’re looking for somebody who is 25, maybe then it does become an issue. But I don’t know, that was just one of my gripes right off the bat.
NASIR: I mean, it’s an understandable perspective because I think most people are thinking also in the industry itself, the entertainment industry may be held to a different standard. But, really, from an age discrimination perspective, it’s really not. You know, if you discriminate based upon an age that is for those that are 40 and older, then that’s age discrimination under pretty much federal and state law.
This whole legislation that is going into effect January 1st all started out with this – at least in part – with this lawsuit that was filed by an actress, Junie Hoang, and she sued IMDB in 2013 for basically one million in lost wages. Her position was, when she signed up for IMDB Pro which has some kind of nominal or some amount of subscription, she deliberately left the birth date blank. And then, there’s an option for others to submit – almost like Wikipedia – further information about a particular actress or actor and that’s what happened in this case. Someone went in and actually filled in the birth date. And so, the actor went on to state that, if one is perceived to be “over the hill” – i.e. approaching 40 – it is nearly impossible for an up and coming actress such as herself to get work as she is thought to have less of an “upside.”
And so, I can understand her frustration. She submits an application but she doesn’t submit the birth date and all of a sudden it’s there. She’s frustrated.
MATT: Yeah. Unfortunately, I can find the complaint. I was looking at it yesterday though. For that one million figure, I want to say – if my memory serves me correct – it was about 75,000 in the compensatory damages or I guess lost wages. And then, most of that was punitive from what I recall. But she ended up losing anyways. Actually, I mean, it’s a strategic lawsuit because no one would probably even be talking about her if it wasn’t for this. Probably worth it.
NASIR: You’re right. Now that her name is now on one of the most famous podcasts in the country and also three years later after this lawsuit is filed, you have a statute that goes into law in California in the beginning of this next year. But I’m sure you have thought about this too and I was looking online. Other attorneys have comments saying, “I don’t think this law is going to last.” To me, it’s completely unconstitutional. What they’re basically saying is that IMDB, you’re a private party, but when you contract with anyone to be part of your site, you cannot post their birth date. Who is the state of California to say that IMDB can’t do that? Where is that line between free speech and protecting the rights of age discrimination? I’m pretty sure, in this particular case, commercial speech is going to be protected and this law is not going to go much further than where it is now.
MATT: All it is is posting facts. I think there was one constitutional law expert that I think put it very eloquently. The statute seems to me of the most dubious constitutionality. Birth dates are facts.
NASIR: That’s right, and it’s not like it’s different than, for example, an employer asking somebody’s age or asking the applicant to do so because IMDB is not an employment agency. Though it has that purposes, I think everyone understands – at least you and I – we don’t use IMDB for that but we use IMDB. If someone wants to know what the age of a particular actor or actress or some other person involved in the motion picture industry, they’re either going to Wikipedia or IMDB. It’s because it’s factual and it’s very reliable to be accurate. And so, I think it’s quite a stretch to make this law, especially since it’s only applicable in California. For you New York actors and actresses or those in Vancouver or other motion picture centers, this law doesn’t protect you which is odd. Even though IMDB goes beyond just California, obviously, most of Hollywood – well, I guess that goes without saying – Hollywood is in California.
MATT: Two, I mean, not to go back to the statute again but it’s important that it only applies to commercial, online, entertainment employment service provider that also enters in the contractual agreement. You mentioned Wikipedia but this isn’t going to apply to Wikipedia. IMDB and IMDB Pro are the only two sites this is going to be applicable to unless there’s something I’m not aware of.
NASIR: Yeah, and I think that’s what their argument is – that IMDB, even though I just said it’s not necessarily known publicly for it being an entertainment employment service provider. But it does have that role. It’s not like it’s absent of having anything to do because being an employer but I don’t know. We’ll see. I think most attorneys believe that it’s unconstitutional. But there are a few – including well-known actors’ guilds and unions like SAG – that they believe it’s constitutional and that, in litigation, that they would win when it comes to this constitutional issue.
MATT: Yeah. You know, SAG is obviously in support of this. They think it’s a step in the right direction towards issues of age discrimination. I guess one thing too, and we’ve only talked about kind of actors and I think that’s what people would think but I understand, if I’m correct about this, it applies to all people involved in the entertainment industry, right? It’s not just the people.
NASIR: Yeah, it’s not just the actors.
MATT: It’s people on both sides of the camera.
NASIR: In that respect, I think everyone agrees with that – that age shouldn’t be a factor. But I think there is something to say that age does become a factor when it comes to looks when it comes to the entertainment industry. However, I mean, people in the industry have a legitimate gripe about how people over 40 are treated. Just as a very simple example, people that are older tend to be portrayed as grumpy, as kind of mean, and that kind of stereotypical perspective, and so do many other stereotypes appear in popular media and so forth.
In that sense, that should be combatted but, by removing your birth date, I’m not sure how far that’s going to go and perhaps you and I are missing something. Perhaps casting directors play a heavy role in relying upon birth dates that are listed in the IMDB directory. I don’t think that’s the case. If they can show that, then maybe they will have a better argument than just removing it altogether.
MATT: Yeah. I’ll have to ask you. I never did any sort of headshot and resume on the back so I don’t know if, when you give that to someone who’s casting, if it has… I guess it doesn’t. I don’t know if it has age on it. I guess not, if people want to be making a big deal out of it.
NASIR: No, I mean, you can usually put whatever you want. Those are your headshots and so forth and I’m sure there are some standards but I very much doubt that there’s age on there but I could be wrong. I don’t know.
But, you know what, this kind of ageism is not limited to this particular industry. There are also other industries that this tends to be quite a bit of an issue and we’ve talked about this before in the tech industry.
NASIR: Not only with ageism but also sexism as well. Do you remember when we covered that HubSpot CEO, Brian Halligan? We covered it maybe – I don’t know, I want to say a year ago, but it’s probably been less – and it was at that time where he was basically saying, “Oh, we want to build a culture that specifically attracts Generation Y-ers.” It was at that time that that former employee wrote that very scathing book about the culture there and how horrible it is and that particular former employee was above the age of 40 and it became an issue that he was basically pushed out – or he alleges that he was pushed out – because of his age. Ageism is not only an issue in the tech industry but also in the motion picture industry as well. It’s something that all employers – small businesses and large – need to start thinking about because, in California, if you have five employees or more – which is not that many, of course – you have to abide by these age discrimination protection statutes. Now, from a federal level, it starts at twenty employees.
MATT: Yeah, you mentioned the tech industry, I think that’s getting more well-known now you hear the average age – we might have mentioned it before but the average age of people that work at Facebook and Google and some of those other companies in that area in the tech side of things, it’s a pretty low median. It’s definitely something that, well, I was going to say it’s kind of industry-specific but it’s really not, I suppose.
MATT: It can reach any industry but some more than others, I guess.
NASIR: That’s a good point because I think it’s more apparent in certain industries because of the nature of how certain industries are developed and so forth and we can kind of get into that another time. But there are ways for businesses to protect themselves, including those in the motion picture industry, and there are ways, there are apps, there are websites that have made it so that there’s – at least from a first barrier perspective – I think it’s hard to hire somebody without meeting them so, by meeting them, you know their race, their age – or their approximate age – and so forth. But, when it comes to the application process, besides, the obvious of not asking silly questions like, “What is your race? What is your age?” on job application, there are ways to make it so that, when they apply, there’s not even hiding their name because that can give some kind of cultural reference to their racial identity as well as even their age for that matter, depending upon their name, but don’t see any photos, even the background, just kind of a basic objective criteria in order to get past that first round of interviewing.
MATT: At least in the initial stages, most of the times, there’s – well, the motion picture industry is a little bit different – in a lot of businesses, you just get a resume. I guess you could probably tell the gender but you couldn’t necessarily tell, I mean, you wouldn’t be able to tell the age unless there’s the dates they graduated or you wouldn’t be able to tell the race even. At least those initial things aren’t checked or are in place.
You mentioned a couple of different things that businesses can use. I checked out on of them, this gap jumper, it’s basically the way they kind of describe it is discovering talent “The Voice” way. I’ve never watched it but I think they listen to somebody singing without looking at them and then, if they like it, they decide. But, yeah, it’s one way to at least lessen the possibility of some sort of discrimination claim down the road. I mean, if someone wants to bring the claim, they’re going to, but at least it’s a good argument to be made then from the business’ perspective.
NASIR: Yeah, and I think a lot of people – employers especially or hiring managers – do not think that they are discriminating. In fact, when they are accused of discriminating, I bet you that it’s not necessarily intentional.
I hate to get political here but it reminds me of the last debate which was awesome entertainment between Hillary Clinton and Donald Trump, when Secretary Clinton was asked regarding kind of inherent biases with the police, she mentioned that everyone has inherent biases. She got some opposition to that because they were saying, “Well, what are you saying? Is everyone a racist?” Whether she was saying that or not, I don’t think she was, but that’s not really the point. The point is that studies have shown over and over again that, even if you don’t think you’re a racist, first of all, just because you have a bias doesn’t mean you’re a racist. Everyone has inherent biases whether they’re positive or negative. Just because you have a negative bias doesn’t mean that you’re a racist but it does influence your decision. Sometimes, these decisions are not intentional. Even if you don’t think that this is an issue for you, you never know because these kinds of lawsuits are not just about proof because, oftentimes, it’s very hard to prove that you’re not chosen because of a race or because of your age or so forth because all you have to do is prove that it was some other reason. So long as none of the reasons were because of your race or gender or age, et cetera, then you should be fine. But it’s the impression.
Take for a second, you own a business and you receive a lawsuit. You get served, accusing you of discrimination. That in itself will change the impression that anyone and everyone has upon you – whether you actually discriminated or not. And so, taking this kind of hiring process seriously by getting ways to remove even the slightest chance that that could be an issue becomes really important, especially in California.
MATT: Yeah. It’s the classic “the damage is already done” situation. I guess you can rebuild over time. The way I’m going to compare this, I’ll compare it to our topic.
Ben Affleck, everyone thought he was done after Gigli?
NASIR: Yeah, Gigli.
MATT: It took him a long time to turn his career around and change the biases that people thought of him and now he’s successful again. That was a terrible analogy.
NASIR: No, well, I was just thinking about that new movie he had.
NASIR: It was where his wife was crazy.
MATT: Oh, Gone Girl?
NASIR: Yeah, Gone Girl. That was a good one.
MATT: I liked that.
NASIR: I wonder how old Ben Affleck is. If he’s over 40, I’m not going to watch his movies anymore.
MATT: Going back, if you had to guess, because the whole point of this law is, if an actor requests that you take down their age or birth date, that you have to. What percent do you think are going to request that? It’s impossible to guess.
NASIR: I think a lot of actors don’t mind. I wouldn’t be surprised, especially, frankly, younger ones. By the way, Ben Affleck is 44 so I’m going to have to stop watching his movies. But, yeah, a big segment of actors, first of all, it’s an opt-out so you actually have to request it or they don’t provide the birth date information. And so, it’s hard to tell. Like I said, I am very skeptical as to whether this law is even going to be upheld and actually go into law. At least it’s going to be challenged within the year, for sure.
MATT: I think it’s going to be, yeah, I agree completely. I think this is just going to come and go. Let’s see. Who’s an actor who had a lot of people are talking about a lot and then just disappeared? That’s what this bill is, this legislation is.
NASIR: Because of their age?
MATT: No, because the person was unconstitutional. I was trying to think about somebody who was talked about a lot and then, for one reason or another, just completely fell off the radar. I don’t know. We’re going to sit here thinking about this for too long but that’s what this is, basically. I agree with you. I don’t think this is going to pass mustard. Even if it does, I just don’t see it affecting too much. I mean, think of it this way. I’ll take it one step further. Let’s say it does stay in effect. Somebody requested their age be taken off, this person ultimately gets the role. This happens all the time. Someone gets cast in a role and then they get replaced or they find somebody else just for whatever reason. Maybe the people that are putting the director, let’s say even the casting agency, whoever is in-charge of casting finds out their real age and doesn’t like it, people get replaced so easily, it’s going to be hard to tell. Do you see what I’m getting to at this?
NASIR: Yeah, it’s a good point. If you find that email that says, “Hey, did you know so and so was 42? That’s way too old. We’re going to have to find somebody else.” After they hire them, an email like that or a fact circumstances where, after they found out the age, then they terminated that person. Those are facts that any employer, but that’s kind of my point, it’s illegal anyway. And so, finding out someone’s age is not too difficult. On the other hand, it’s understandable from the motion industry’s perspective that, well, it’s not really that important – looks is really what people are looking for when it comes to the entertainment industry. So, really, their actual age doesn’t really matter. Why add that element? Why add to the chance that someone’s going to use that fact about that person against them in a discriminatory manner?
MATT: Well, now you’re just making the argument that I made at the onset of this episode. I figured out how Ben Affleck, his email is just firstname.lastname@example.org so that’s how you knew he was 44 because he was born in 1972.
NASIR: Ah, is that really his email? I can’t believe you just put it on-air. He’s going to get so many emails now.
MATT: I was able to find it that easily.
NASIR: Anyway, I think that’s good coverage of that.
Just kind of a big takeaway, even though this may not apply to you, pretend it does and act like it. Honestly, that’s the best advice I can give.
MATT: Or if you’re about to start a commercial online entertainment service.
NASIR: It is applicable.
MATT: That you enter into contractual agreements with people then, yeah, that’s something you might want to take a look at.
NASIR: Also, take a look at your business model because you have some competition.
MATT: This is coming out in October. There’s a decent chance we might not have any other episodes in October. For the listeners, don’t think we’re over and done with. There just might not be any more episodes.
NASIR: If anything, we’re preparing for something big.
MATT: Yeah. Let’s just say the next episode we record, we might have double the amount of people that are going to be recording because you and I are both getting that Siamese twins surgery.
NASIR: Yeah, all right, we’ll leave you with that cliffhanger.
MATT: Cliffhanger for this movie episode.
NASIR: Thanks for joining us.
MATT: Yeah, keep it sound and keep it smart.