Do the Black Men Suing ‘The Bachelor’ for Racial Discrimination Even Have a Case?

I don’t watch “The Bachelor.” I’ve never seen “The Bachelor.” So, I’m not really interested in the class-action lawsuit brought against the show, except from a legal perspective. This is perhaps the one advantage to having two lawyers on staff at WarmingGlow: We can shoot the sh*t about the merits of these cases with a modicum of authority (but not too much: After all, we write for a television blog).

The case comes from Nathaniel Claybrooks and Christopher Johnson, two black men who claim that the show fails to give minority candidates a “starring role” in the series. They claim that, during an interview process for the show, producers paid scant attention to them compared to the white applicants, even though Claybrooks and Johnson are both single and “looking for love.”

First of all, legal merits aside, it takes a man with an extraordinary lack of pride to admit to producers that he’s “looking for love” on a reality show; to reveal that to the nation through a class-action lawsuit? That’s just kind of sad, no matter what your race.

As to the suit, the two men are suing under an 1866 Civil Rights law that prohibits businesses from refusing to contract with minorities, and a California law that straight up prohibits racial discrimination. Presumably, if the two men can demonstrate that the show has engaged in a pattern of refusal to cast minority actors IN THE STARRING ROLE, then they might have a case. Having been denied, the two men do have standing, although to bring a class action lawsuit, they will need to find many other minority applicants who were denied and are willing to admit that they were aggrieved by the denial, i.e., that not being cast in a dating show caused them emotional distress or another harm.

There are two rubs here, which to me suggests that the case won’t advance very far. One, it is my understanding that most of the people in the starring role are selected from finalists in previous seasons. The producers, presumably, have no say in who the finalists are. Minorities are cast among the pool of potential suitors, so it’s on the Bachelorette or Bachelor to advance a minority suitor into the final rounds, and not the producers. However, if the men can demonstrate that the game is rigged, so to speak, so that minority suitors are kept from advancing, then maybe there’s a tenuous claim.

The other rub is this: If the contestants were fired because of their race, they’d have a much better case. But employers have broad discretion in the hiring process, and no one has a blanket right to be considered. If 1,000 people had sent in application videos, the producers could’ve burned them all with no legal consequences, so long as they didn’t burn only the black applicants’ videos.

The other consideration is that, the employer need only show a legitimate, non-raced based reason for the hiring decisions. The applicants seem to point to that issue in their claim: “The refusal to hire minority applicants is a conscious attempt to minimize the risk of alienating their majority-white viewership and the advertisers targeting that viewership.” That’s a tough one to unpack: The producers do have a legitimate reason for not considering minority applicants — marketing, promotion, profit — but that reason is race-based. But again, this is not public accommodation law — where the burden on the employer is higher — so the producers would have more leeway in the hiring process.

Finally, the biggest detriment to their claim is the need to show “harm.” How were they harmed by not being cast in “The Bachelor”? Nobody has a legal-mandated right to “look for love,” so harm would have to be very broadly construed, as in: On a societal level, the plaintiffs could argue that the refusal to cast black people in the starring role means less black role models, or that less minority representation on a reality dating show does a societal harm. But it is reality television were talking about; how much societal need is there to have a crappy, exploitative, bottom-feeding genre of television better represented by minorities? I don’t know. Moreover, how do you show emotional distress in the context of a dating show?

Bottom line: It sucks if it’s true that “The Bachelor” producers do not give as much consideration to African-American applicants; that’s totally sh***y, and it’s hard for me to believe that we haven’t advanced enough that a black man in the leading role in The Bachelor would not fetch solid ratings. But is there a legal claim? That’s tenuous as hell, and my guess is that the men are using the lawsuit to get to the discovery level, so they can get access to all sorts of internal memos, which may point to something more egregious. Television executives, after all, are a**holes. So, I’d expect, if the case is not tossed out before discovery, that a settlement will be quietly reached.

If the case advances, however, and the two men — and the rest of the certified class — win, then it could mean a huge change for reality-television casting.

Now I’ve officially spent more time thinking about “The Bachelor” in the last hour than I have in the entire rest of my life. That’s probably even more sad than the case.