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Ness Lyons: Why are standard working practices for most sectors ignored in theatre?

Scene from The Golden Dragon at Sherman Theatre, Cardiff. Photo: Clive Barda
London Hackney Empire has cancelled performances of The Golden Dragon following criticism of its all-white cast despite being set in a Chinese restaurant. Photo: Clive Barda
Ness Lyons
Ness Lyons is a writer, performance poet and freelance consultant for legal education
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There is dramatic irony in how some arts organisations proudly claim they are equal opportunities employers when advertising permanent office positions, yet seem unable to extend those same equal opportunities to the actors they put on stage or the writers and directors whose work they produce.

As a playwright and former employment law solicitor, I am often dismayed at how good working practices, standard in other sectors, are frequently ignored in theatre. Paying the national minimum wage to the cast and creative team of a fringe play is often regarded as an unexpected perk rather than what it is: a basic legal entitlement. But some aspects of the theatre as a workplace are less legally clear-cut, such as the recent well-publicised cases of whitewashing.

Race is one of the nine ‘protected characteristics’ under the Equality Act 2010, and so it’s illegal to directly or indirectly discriminate against ethnic minority actors. But while a cast member’s race is a protected characteristic, a character’s race is not.

Actors are therefore extremely unlikely to have legal recourse against producers for not seeing them for roles that match their ethnicity. Barrister and employment judge Sean Jones QC says the one situation where a producer may be liable for racially discriminatory casting is if they “reserved ‘white British’ roles for white British actors but allowed a broader pool for non-white British roles". This means that whitewashing or yellowface is “likely to be socially unacceptable long before it is unlawful".

And this, as we’ve seen, is indeed the case. These productions - and the organisations that have hosted and funded them - may not have found themselves in the courts, but they have definitely been tried by the Twitter jury.

Their defence? 'Creative licence'. There comes a point however, where creative licence crosses in to taking liberties. In plays where a character’s ethnic minority is a crucial part of the narrative, it surely makes both artistic and moral sense to have that visually represented and portrayed.

'These productions – and the organisations that have hosted and funded them – may not have found themselves in the courts, but they have definitely been tried by the Twitter jury'

And there is no legal reason why producers can’t make every effort to find the right actors racially. As Sean Jones QC points out, restricting auditions to actors who match the (minority) ethnicity of characters would “be defensible on the basis it was a genuine occupational requirement".

But as this still isn’t happening as a matter of course, there needs to be stricter accountability. Arts Councils must make the bodies they fund follow diversity policies - for all protected characteristics. Diversity quotas are a good idea and it’s great to see these being introduced, with the BFI having just released its own diversity targets for 2018.

Theatres programming visiting productions must also accept their share of responsibility for putting a diverse range of stories and people on stage. A play with an all-white, male cast and an all-white, male creative team isn’t on its own a problem. But it becomes part of one when scheduled in a season alongside five other plays with the same composition. Context is everything.

Theatre is a creative form which prides itself on holding up a mirror to humankind and advocating for social justice. It should ensure it simultaneously does justice to all the people who work in it.

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