Laying Down the Law

Did you know that if you are age 40 or over, audition for a company in the United States that has more than 20 employees, and prove that you can credibly do the role, the company cannot turn you down based on your age? For that matter, the Equal Employment Opportunity Commission specifies you may not be turned down because of race, color, religion, disability, gender, or national origin, either.

Proving 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 leaders make the real decisions.

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 reprinted 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)?

“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,” one artistic director working in New York said. “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 some in the opera world might use it 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 reveals a 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. Certain legal loopholes would allow them to ask age, he added, but it is so easy for a smart lawyer to turn things around that the company has decided not to ask.

One principal artist for this particular company, however, reports that prior to being rehired for the next season, she received a phone call from the house artistic department, saying 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. Shortly thereafter, the company notified her that it would not rehire her.

Who did the company hire as a replacement? A young singer. The reason given? None. If pressed, the company could always say that the older artist, in their opinion, wasn’t as good.

This story is the one and only reason being hired as independent contractors would be beneficial, as far as CS can see—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 for ages anymore.

Competitions: One attorney said that programs that 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. The Metropolitan Opera’s very thorough legal department, however, hasn’t stopped the Met from holding a competition with age requirements.

We couldn’t 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. Managers are in the business to make money, and a young singer offers more potential income over the long haul than an older singer.

The Audience: You can’t charge an audience with violating an age discrimination law, but they are the ultimate decision-makers as to who gets hired. Box-office draw is the best reason companies have for hiring older singers. In response to a question about older singers 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 said they are able to ignore the physical attributes, if necessary. Avid opera fan Hermine Stover of 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, CS has 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 United States. Singers can’t do much about age discrimination in Europe until Europeans enact laws similar to those in America.

Amara’s landmark settlement has already brought about changes in the field. CS’ very limited phone survey, however, seems to confirm 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.

It is hard to believe, even in this lawsuit-happy country of ours, that we can’t find other ways to resolve these problems. If you notice an infraction of the rules of the Age Discrimination in Employment Act in the United States, 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, you have 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 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 or 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.