Redefining the Scope of Anti-discrimination Law: Illuminating Colorism as a Basis for Discrimination Claims by Black Entertainers

Authors

Tolulope F. Odunsi-Nelson

Abstract

This Article critically examines the pervasive issue of colorism within the entertainment industry and its profound impact on dark-skinned Black entertainers. Anti-Black colorism is discrimination against Black people with darker skin tones and Afrocentric features (i.e. darker eye color, kinkier hair, broader nose, fuller lips). Tracing the historical roots of colorism from the colonial era to contemporary times, the Article emphasizes how societal preferences for Eurocentric features and anti-Black racism have created and perpetuated a hierarchy that disadvantages darker-skinned individuals. It analyzes the underrepresentation and pay disparities faced by dark-skinned Black actors and actresses. It details the industry’s preference for lighter-skinned individuals in leading roles and the relegation of darker-skinned actors to stereotypical and often negative portrayals. The Article also assesses the legal challenges that dark-skinned Black litigants face when asserting colorism claims under federal anti-discrimination laws, specifically Title VII of the Civil Rights Act of 1964 and Section 1981 of the Civil Rights Act of 1866. One of the first hurdles that any dark-skinned Black litigant that asserts a colorism claim in federal court may face is that, historically, courts have conflated colorism claims with race discrimination claims. At times, this has resulted in the dismissal of dark-skinned Black litigants’ colorism claims. In addition, dark-skinned Black litigants face significant evidentiary hurdles in asserting colorism claims. Further, in the context of the entertainment industry, casting directors may invoke the bona fide occupational qualification (BFOQ) defense, the business-necessity defense, and First Amendment protections to shield discriminatory practices. The Article proposes several solutions to combat colorism in the entertainment industry. It advocates for the introduction of implicit bias evidence to address the subtle nature of colorism and strengthen the claims of dark-skinned entertainers. Building on previous scholarship, it argues that Congress should define “color” under Title VII to provide clearer legal standards and consistency in court rulings. Further, it proposes the application of a narrowly tailored color-based BFOQ that prioritizes the hiring of dark-skinned Black individuals in the entertainment sector. The Article concludes by emphasizing the need for a comprehensive legal framework that explicitly addresses colorism within the entertainment industry.

Recommended Citation

Tolulope F. Odunsi-Nelson, Redefining the Scope of Anti-discrimination Law: Illuminating Colorism as a Basis for Discrimination Claims by Black Entertainers, 90 Brook. L. Rev. 1171 (2025).
Available at: https://brooklynworks.brooklaw.edu/blr/vol90/iss4/4