In 2010, seasoned Southern California weatherman Kyle Hunter got wind of a weather anchor opening at KCBS, a Los Angeles-based television news station. Mr. Hunter, who at 42 had accumulated 22 years of broadcasting experience and has a degree in geosciences and broadcast meteorology, contacted the station’s management about the job immediately. He never heard back.
Instead, KCBS hired Jackie Johnson, a 32-year-old female weather forecaster from its sister station, KCAL. Eager to fill the new void at KCAL, Mr. Hunter then contacted that station, but was told in an e-mail that there was “not an opening for you here now.” He later learned that 25-year-old weather anchor Evelyn Taft snagged the spot.
Mr. Hunter, an award winning, certified meteorologist, claims the stations hired young, attractive females, instead of qualified males like himself, in an effort to hook more male viewers. He is suing CBS Broadcasting in California state court for gender and age discrimination in violation of California’s Fair Employment and Housing Act (FEHA), seeking money damages, punitive damages, and attorneys’ fees for the alleged discrimination and his “pain and suffering.”
Well-known discrimination attorney and active feminist Gloria Allred is representing Mr. Hunter in what she says is a “trail blazing lawsuit” because “most victims of gender discriminatioin are female.” According to the Huffington Post, CBS maintains that the accusations are “frivolous” and predicts “an early dismissal” of the lawsuit.
FEHA prohibits employers from either refusing to hire or firing someone based on gender, but let’s face it, Ms. Taft and Ms. Johnson weren’t hired just because they are female. They were hired because they are attractive, too.
This might not sound fair or just, but television is a visual medium – and television news is a business that relies on viewers and advertisers to make a profit. So, was Mr. Hunter not being hired an exercise of sound business judgment or age and gender discrimination?
The media accurately reported the facts, but it didn’t analyze the legal issues. LASIS will.
In a 2004 California Court of Appeals case, Holly Hallstrom, a model on the television game show “The Price Is Right,” sued Bob Barker, the host of the show, for gender discrimination claiming she was fired from her on-air job for gaining weight. The court found no gender discrimination because Ms. Hallstrom could not prove that a male “of comparable qualifications” replaced her or that she was let go when similarly situated male co-workers were not (there were no similarly situated male co-workers). And evidence that the show’s 300-pound male announcer wasn’t fired was “to put it politely, unpersuasive.” He’d been hired because of the unique sound of his voice. It was no secret why the women on the show had been hired. It was because they looked beautiful. People tuned into the show just for the ladies (who had fan clubs devoted to them).
The record shows that a KCAL manager told Mr. Hunter that he “wouldn’t be the type men would want to look at,” since the station was trying to “cater to its many male viewers.” Indicating that the station sought to hire females. And it would be hard for KCAL to argue that Ms. Taft was as qualified as Mr. Hunter for the gig. In fact, the record shows that the station dropped its preference for American Meteorological Society certified weather anchors in order to hire Ms. Taft, a 25-year-old blonde beauty with only a few years of experience in front of the green screen.
So it’s possible that Mr. Hunter might succeed on his gender discrimination claim, and get some money for his litigation efforts. But keep in mind: KCAL is a business; the station was seeking to increase its male viewership. In this sense, Ms. Taft’s qualifications for the job far surpassed Mr. Hunter’s.
Mr. Hunter is also suing for age discrimination.
Last year, LASIS wrote about a 60-year-old former New York City-based news reporter who sued for age discrimination when a younger, less experienced newscaster replaced him. Reporter Asher Hawkins predicted that an aging anchor would likely lose on an age discrimination claim because a station can argue that “it had other, nondiscriminatory reasons” for ousting on-air talent.
In a 2010 California Court of Appeals case, an assignment editor at a California newspaper sued her employer for age discrimination when younger employees were promoted over her. But while the editor believed she was qualified for the promotions, her employer disagreed, and the court found that the “actual motive” for promoting the junior employees was not necessarily the discriminatory one claimed by the plaintiff.
This seems to cloud the chances of Mr. Hunter’s age discrimination claim, as the stations could argue that although he has a flood of forecasting experience, the young and female weather anchors were hired to help the stations soar ahead of the local competition.
Note that we believe the outcome would be different if Mr. Hunter had a contract and was fired and replaced by a young, inexperienced woman.
And yes, the stations’ hiring practices seem to teeter on the edge of gender and age discrimination, when looking at the law out of context. But when looking practically at the matter, news outfits can’t be forced to hire on-air talent who would garner them lower ratings – and hurt their bottom line.
This blog originally appeared in Legal as She is Spoke, a project of the Law and Journalism track at New York Law School, on April 9, 2012. Reprinted with permission