Laying Down the Law

Did you know that if you are age 40 or over, auditioning for a company in the U.S. which has more than 20 employees, and you prove that you can credibly do the role, you may not be turned down based on your age? For that matter, the EEOC specifies you may not be turned down because of race, color, religion, disability, sex or national origin either.

Proving that there was discrimination, however, is another matter. It is not hard for a company in any field to say one thing publicly and another behind closed doors where real decisions are made.

In the past 20-or-so years, America has become more conscious of discrimination and discriminatory practices in the workplace. In 1967 the federal government began passing legislation prohibiting employers from enforcing mandatory retirement at age 65. Affirmative Action has also increased discrimination awareness on many different levels, although it has come under fire in recent years, criticized for allegedly creating economic imbalances and encouraging reverse discrimination.

Discrimination in the arts, and specifically in the opera world, is a difficult case to prove. Lucine Amara, a soprano who sang for many years with the Met, sued for discrimination and won [See her full story in this issue], but is it possible to completely eliminate the problem of discrimination in a business subject to decisions based on personal likes and dislikes (casting)?

One artistic director working in New York said, “A disgruntled auditioner once tried, unsuccessfully, to raise the issue of age discrimination in our casting policies, since there were few older performers in our ensemble. I think that artistic integrity is compromised when standards which may have validity in other arenas are applied to artistic choices.”

Artistic integrity? The question of artistic choice lies at the heart of this issue, but it is possible that it might be used by some as a public statement of license to continue the private practice of age discrimination behind closed doors.

What “They” Think

A random sampling of several opera companies, competitions, and apprentice programs show that there is vast ignorance or fear of this law.

THE COMPANIES: An attorney in the legal department of one of America’s largest opera houses, who preferred to remain anonymous, said they absolutely never bring up the issue of age at an audition, or even in their young artist program. He added that while there were legal loopholes, which would allow them to ask age, it is so easy for a smart lawyer to turn things around that they have just decided not to ask.

However, one principal artist for this particular company reports that prior to being re-hired for the next season, she received a phone call from the house artistic department, stating that she had not filled out her birth date on her legal forms (W-4, etc.). She thought it a strange question coming from that department, but felt pressured to give the information. Not much later she was notified that she would not be re-hired. Who was hired as a replacementa young singer. Reason given? None. If pressed, the company could always say that this artist wasn’t as good, in their opinion.

This story is the one and only reason we can see it would be beneficial to be hired as independent contractors–no one in the company sees your legal documents.

THE APPRENTICESHIPS: Many apprentice programs ask for age and proof of age. One director had been erroneously told that it was legal to ask for age as long as age limits were advertised in notices. The lawyer mentioned above said that because of lawsuit concerns, their program never asks age anymore.

COMPETITIONS: One attorney said that programs which give awards to singers and have 20 or more employees should be very concerned about having age requirements, since a gift of money can be construed to mean employment. However, the Metropolitan Opera, with a very thorough legal department, holds a competition with age requirements, and we were not able to find a lawyer to speak specifically about competitions.

THE MANAGERS: Managers do not fall under this law, since they do not hire or fire singers–technically. They are in the business to make money, and a young singer offers more potential income over the long haul than an older singer. Most older singers would be best advised to first start their careers without a manager. If you need help on how to do this, contact Classical Singer for MANAGEMENT, The Book. [Insert, p.L] You’ll find from reading the book that even singers with managers have to do most of their own career management.

THE AUDIENCE: While an audience certainly can’t be charged with violating an age discrimination law, they are the ultimate decision-makers as to who gets hired. Box office draw is the best reason companies have for hiring older singers. When the question about older singers was asked on the Internet recently, some audience members were very definite about wanting their singers to look the age of the character they are portraying. Fans of truly great singing, however, cared more that the voice was stellar, and were able to ignore the physical attributes if necessary. Avid opera fan Hermine Stover, from California, wrote, “I may be some kind of oddity, but I do not have distaste for a tattered voice, nor for an aged voice, one which through use of the material which remains, can evoke an emotional response.”

Despite that, opera audiences on the Internet are always buzzing with news of the latest young discovery, even as they follow their favorite singers.

Should Singers Sue?

Over the years, we have received calls, e-mails and letters from singers willing to put their careers on the line to levy age discrimination lawsuits. The good news is that Lucine Amara has already played the role of the sacrificial lamb in the U.S. Until laws are enacted in Europe as they have been in America, not much can be done about age discrimination there.

As a result of this landmark settlement, changes have already been made in the field. However, the results of our very limited phone survey confirmed that companies simply don’t know the rules or have forgotten them. We think the best course of action isn’t lawsuits, but simply to get information to the companies.

AGMA (the singers’ union) has been faxed all the legal documents, and will receive copies of this issue. We have asked them to participate with us in a mailing campaign to opera companies, apprentice programs and major competitions in the United States to let them know what the laws are. We are also petitioning Opera America to make sure this is discussed at the next convention of opera companies. Hopefully, this will alert companies as to what they can and cannot do. We also think some changes need to be made so companies do not have access to personal legal records.

It is our belief at Classical Singer that further lawsuits would create a hostile environment, tear at the fragile economic fabric of nearly any company, and decrease opportunities for singers everywhere. Most of the people running opera companies, particularly small companies, deserve a great load of thanks from singers…and a bit of educating from AGMA, Opera America and Classical Singer.

It is hard to believe in this lawsuit-happy country of America that there are other ways of resolving problems. If you notice an infraction of the rules of the ADEA in the U.S., contact your union, or Classical Singer magazine. We, or they, will contact the company and gently explain the law. You will not need to be involved. In the event abuses continue, there are other remedies, including mediation, but a lawsuit is the last and final recourse, not the first.

It should be every singer’s goal to help opera companies grow, to increase their audiences, and to build budgets for classical music performance. If you want more work, that’s our recommendation.

The Law
Press Release Quotes from the Equal Employment Opportunity Commission
Hiring and Firing: The Age Discrimination in Employment Act of 1967 (ADEA) protects individuals who are 40 years of age or older from employment discrimination based on age. The ADEA’s protections apply to both employees and job applicants. Under the ADEA it is unlawful to discriminate against a person because of his/her age with respect to any term, condition, or privilege of employment–including, but not limited to, hiring, firing, promotion, layoff, compensation, benefits, job assignments, and training. It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on age or for filing an age discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under the ADEA. The ADEA applies to employers with 20 or more employees.
Apprenticeships: It is generally unlawful for apprenticeship programs… to discriminate on the basis of an individual’s age.
Advertising or Asking Age on Applications: The ADEA makes it unlawful to include age preferences, limitations, or specifications in job notices or advertisements. As a narrow exception to that general rule, a job notice or advertisement may specify an age limit in the rare circumstances where age is shown to be a “bona fide occupational qualification” reasonably necessary to the essence of the business….The ADEA does not specifically prohibit an employer from asking an applicant’s age or date of birth. However, because such inquiries may deter older workers from applying for employment or may otherwise indicate possible intent to discriminate based on age, requests for age information will be closely scrutinized to make sure that the inquiry was made for a lawful purpose, rather than for a purpose prohibited by the ADEA.

CJ Williamson

CJ Williamson founded Classical Singer magazine. She served as Editor-in-Chief until her death in July, 2005. Read more about her incredible life and contributions to the singing community here.