by Nancy N. Lubrano Carothers DiSante & Freudenberger LLP
Generally, you may not base employment decisions on age or gender. However, in some professions, such as newscasting, First Amendment rights allow employers to make protected “casting” decisions that normally would be considered discriminatory. California courts have held that the selection of who will deliver our daily news is protected as part of the right to exercise free speech. Still, CBS Broadcasting’s recent decision to replace its well-known Los Angeles weather anchor with a young, attractive female is under heavy scrutiny.
Cloudy skies for longtime male weather anchor
In 2010, CBS Broadcasting sought to replace longtime weather anchor Johnny Mountain, whose contract it wouldn’t renew for the KCBS prime-time newscast. Upon learning of the opening, Kyle Hunter notified the network that he was interested in filling Mountain’s position. CBS filled the vacancy with a young, attractive female anchor from a sister station KCAL which in turn created a vacancy at KCAL. So Hunter pursued the newly vacant anchor position.
Hunter sent CBS his demo reel, but the network didn’t believe he had “the talent, skill or on-air presence to be an on-air weather broadcaster in the Los Angeles market.” In fact, he was told that CBS was pursuing young, attractive females for its prime-time weather broadcasts. After all, the number one reason people watch local news is to obtain information about the weather from likable people whom they invite into their homes.
CBS explained that such “local celebrities” must inspire confidence and trust. A friend on the inside told Hunter that CBS catered to male viewers and that he “wouldn’t be the type men would want to look at.”
Not surprisingly, Hunter sued for discrimination, alleging that he was denied a weather anchor job because of his age and gender. At first blush, these facts sound like a slam-dunk discrimination case. However, the California Code of Civil Procedure allows a defendant to attack claims early in a case by arguing that the alleged wrongful conduct is actually protected activity under the U.S. Constitution or the California Constitution in connection with a public issue. The process is commonly referred to as an Anti-SLAPP motion (SLAPP stands for “strategic lawsuits against public participation”).
CBS filed an Anti-SLAPP motion to attack Hunter’s claims. It argued that its hiring decisions are protected by its right to free speech under the First Amendment to the U.S. Constitution. The trial court denied the motion, finding that its hiring decisions weren’t in furtherance of its right of free speech in connection with a public interest. However, California courts have already held that casting decisions regarding who will report the news are in furtherance of the right of free speech.
Based on the prior rulings, the California Court of Appeal reversed the denial of CBS’s motion, finding that its selection of weather anchors is in furtherance of the right of free speech. Consequently, CBS’s selection of attractive, young females for anchor positions is constitutionally protected activity.