Broadway actress’s racial discrimination lawsuit partially dismissed on free expression grounds

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An actress sued the Broadway production company behind “Hadestown,” alleging she was terminated because of her race. Her lawsuit was partially dismissed after a federal judge ruled that the First Amendment permitted the musical’s casting decisions based on the right to creative expression.

Key Players

Kim Moore (stage name Kim Steele) is a Black Broadway ensemblist who was hired in 2020, officially joining the cast of “Hadestown” as a member of the workers chorus on Feb. 11. She performed with the company until her last show in December 2021.

David Neumann is a choreographer who was nominated for a Tony Award in 2019 for his work on “Hadestown.”

Further Details

Based on the album by Anaïs Mitchell, “Hadestown” is a retelling of the ancient Greek myth of Orpheus and Eurydice.

According to court documents, on Nov. 23, 2021, Neumann sent an email to the cast of Hadestown, apologizing for the fact that “certain arrangements of actors on stage” had resulted in portraying a “white savior story.” Neumann also stated that because the production wanted to avoid expressing a “harmful” narrative, the casting configurations would be reevaluated. 

In response, Moore complained to human resources regarding the alleged discrimination she and other members of the workers’ chorus had perceived, specifically that the production was mired in “hostility and anti-black sentiment by management.” 

At that point, the workers’ chorus was exclusively made up of Black cast members, while more prominent characters, including the protagonist Orpheus and antagonist Hades, were portrayed by white actors Reeve Carney and Patrick Page.

Soon after, “Hadestown” dance captain Timothy Reid allegedly informed Moore that she would be replaced with a white woman. Moore then filed another complaint with her union representative, alleging management had doubled down on “racial discrimination.”

On Nov. 27, the show’s senior manager informed Moore that she would soon be terminated. The next day, Neumann sent a follow-up to only Black cast members, reiterating his apology for the musical’s “white savior” narrative and indicating that the production would avoid having an all-Black workers’ chorus going forward.

Three days later, director Rachel Chavkin told cast members and employees that, in order to avoid having an entirely all Black workers’ chorus, a white actor had been hired to replace Moore. That same day, stage manager and supervisor Beverly Jenkins stated in an email to employees that “there [were] too many Black people on stage.”

On Dec. 5, Moore was fired. But her run with the show lasted through Dec. 19 until her role was assumed by a white actress. 

On June 8, 2023, Moore filed a federal lawsuit against Hadestown Broadway LLC, seeking a judgment that the company engaged in unlawful employment practices that violated the Civil Rights Act of 1964, New York State Human Rights Law, and New York City Human Rights Law.

“Hadestown” did not immediately comment on the lawsuit. Eventually, the show released a statement, standing by production’s decision to recast Moore’s role.

“Out of respect for members of our company, we don’t get into specific reasons around casting decisions,” the statement reads. “These kinds of decisions are painstakingly considered, and are always based entirely on our goal to maintain the highest caliber of excellence on the stage of the Walter Kerr Theatre each night. In this particular case, a performer was hired as a temporary replacement, and she completed her contracted run in that capacity. Unfortunately, the complaint that has been filed by this performer is completely without merit; and we will vigorously defend and stand by our company’s casting decisions.”

Outcome

Retaliation claims remain, discrimination claims falter 

On March 7, 2024, U.S. District Judge Loretta Preska, nominated by former President George H.W. Bush, found that Moore’s immediate replacement by someone not of her “protected class” lent itself to the possibility that “Hadestown” had discriminatory intent in firing Moore.

However, Preska issued a caveat: the production was not liable for Moore’s termination because of its right to creative expression in recasting the show with the “white savior” narrative in mind.

According to Preska, the sequence of events described by Moore’s lawsuit demonstrated that the production “was making its casting decisions with an eye toward how the racial composition of the Musical’s cast affected the story Hadestown was telling on-stage,” noting that “the arrangements of actors on stage expressed a message that departed both from the text of the Musical’s script” and the intended expression of the production. As a result, the production sought to change those casting arrangements.   

“This clearly implicates Defendant’s exercise of its creative expression and artistic decisions,” Preska added, concluding that enforcing Moore’s “claims for racial discrimination would abridge Defendant’s right to free speech that is guaranteed by the First Amendment.” 

Preska allowed Moore to advance the claim that her termination was motivated by retaliatory intent. But her discrimination claims were dismissed to prevent “compelling a theater company to stage a performance in a manner that expresses a story the theater company does not wish to tell.” 

As of May 15, 2024, there were no further developments.