Fight discrimination or get plastic surgery? The eye-opening case of Julie Chen
The most revealing thing about Julie Chen on the Letterman show the other night
was not her off-the-shoulder black dress, or the high-heeled shoes that give her
an awkward waddle, or even the phony “fly-by” wave to the audience that made her
more beauty queen than anchor gal.
No, the most revealing thing was when the round-eyed Julie talked about her
4-year-old Charlie, and how she and her husband, CBS president Les Moonves,
don’t lie—at least to their son.
“We do not lie to our son. If he asks me where babies come from, I tell him;
where’s Michael Jackson? He’s dead, I don’t lie to him, but I…”
Julie would have gone on, but the audience laughed as Letterman did a double
“Was that bad?” a clueless Chen asked Letterman. “Was that bad?”
Letterman said it was just odd that those two questions–on babies and Michael
Jackson–were the ones in which absolute truth would have occurred to her.
It was a rare candid moment that revealed the state of Chen’s moral GPS.
I wrote about Chen
last September, when she revealed that she had eyelid surgery to make her look
less Asian than she was–as a career move.
But I was surprised she still felt
that the basis of the criticism about her had to do with her denial of her
That’s a part, sure. But a small part, really.
The objectionable thing is she may have had a discrimination case against her
then-boss at a Dayton, Ohio TV station, who told her she’d never make it to the
anchor desk because of her Chinese American eyes.
But Julie didn’t act and failed to speak out, until “her secret” could help her
with her talk-show’s ratings.
I guess she didn’t have a story about child molestation, anorexia, or how she
replaced the MSG in her food with some other white stuff, like crack or heroin.
That would have been a Rob Ford-like ratings grabber.
But she had a claim to victimhood. Discrimination!
And her response was–get eye surgery? That’s the kind of thing that makes my
Watch David Letterman’s interview with Julie Chen here:
It’s hard to imagine that Martin Luther King’s response to discrimination would
be to advocate “skin-whitening for negroes.”
OK, Julie’s no MLK. If she were Rosa Parks, she’d be camped out in the back of
the bus, batting her eyelashes with her thumbs up.
As a career broadcaster myself, I know how hard it was to navigate through the
politics of race in the industry.
Even Letterman was surprised.
“This is crazy stuff,” Letterman said. “The conversation you had with the guy in
Dayton, is that legal? Did you ask somebody to…”
“That’s a great question; I was 25,” said Chen. “Uhh, he’s my boss, and I just
didn’t know how to respond. You’re right…is that discrimination?”
Judge Letterman: “I think it is discrimination. Isn’t it?”
Said Chen, softly, “Yeah.”
Then Letterman made a joke to relieve the pressure: ” Is anyone telling him to
It served as a setup for Chen to deliver a punchline: “I think he needs a
She probably could have performed the lobotomy on him herself, had she become
the doctor her parents probably wanted her to be.
It’s clear to me that Letterman was fishing to see if Chen had even considered
talking to a civil rights lawyer first, instead of her showbiz agent.
So I did it for her, as a public service for any folks out there considering the
choice between a fight for justice versus plastic surgery.
I reached out to three top-ranked lawyers who are experts in the field.
One, a high-ranking civil rights official, said this:
What you raise, from remarks of the earlier employer, is common, prejudicial,
but complicated vis-a-vis discrimination. Generally, a remark about an Asian
woman’s eye shape in a negative way could be discrimination by race or maybe
nationality. Practically, it would have to be strong enough or repeated enough
to create a hostile environment. If, however, it is attached as a reason for
firing, not hiring or some other tangible job condition, it could be more
straightforward discrimination. Like everything else, however, there are
complications. If a racial characteristic is a “bona fide employment
qualification,” it could be allowed, though that is very narrow. For example, a
woman or a Black man may be discriminated by race or gender in casting an
Abraham Lincoln role, but the gender or race in those cases would be a
qualification. This exemption is very narrow, though, and isn’t often
allowed–entertainment is one of the few areas it is common. It would be hard to
say, for example, that we don’t want Asian women newscasters in Topeka because
whites would prefer folks that are white. Further, an argument could be made
that commenting that a particular person’s eyes look tired isn’t necessarily a
statement that natural Asian eyes look tired as a group. I would say, though,
that such a remark explaining why an Asian woman doesn’t get the job would
probably be seen as discriminatory. Whether it would be worth pursuing legally
is another story. The burden is on the plaintiff to prove her case.
Asian American legal stalwart Dale
Minami, the man who led the
charge to vacate the WWII conviction of Fred Korematsu, said Chen may not have
had enough to bring a lawsuit back then.
Said Minami in an e-mail: “Not enough. News directors are allowed to make
subjective judgments about a journalist’s effectiveness as a communicator….If
the news director said that her eyes were “too Asian,” there could be a case.”
On whether Chen should have sued: “Given where she is now, I’d say no, because
of the difficulty of proving intentional discrimination based on race or gender.
The other reason is that until recently, suing a station is the kiss of death
for your future.”
Unless, of course, you marry the president of a network as insurance, and use
that to build up your sense of entitlement.
But what if the Chen saga actually began today with a news director somewhere
calling you into the office, not to talk about the content of your report, but
New York attorney Mariann Wang
said it would be a difficult and complex case, but an Asian American would
definitely have a case. Said Wang in an e-mail:
If that happened today–if a supervisor told an Asian reporter that she “will
never be on the anchor desk because she’s Chinese,” and then went on to
say that “because of her heritage, because of her Asian eyes, she
looks disinterested… bored,” — there’s no question that she would have a
race discrimination claim. The employee is clearly being denied a promotion
because of her race. That said, the racism that pervades so much of our
workplace is often much more hidden nowadays. The station manager today would
probably know better than to come right out and state his racial preferences,
and would be more subtle in his criticism. What if he just said that she
looked disinterested and bored, without explaining that it was because of her
Asian eyes? Then the case would be much harder to prove. We would have to try
to find comparators–was there a Caucasian with less experience who vaulted
over the Asian employee to the anchor desk? Were there other comments that
indicated that the manager was focused particularly on the Asian employee’s
eyes? Or what if he said that he didn’t want an Asian anchor because she is
“unrelatable” to her mostly white audience, as Julie Chen’s boss also said?
That too would probably be a winnable case, but does hint at other more
complicated cases where stores essentially validate (discriminatory) customer
preferences through facially neutral policies, like English-only in the
workplace. While an employer is not permitted to simply adopt discriminatory
customer preferences, employers are permitted to impose neutral policies that
may have a disparate impact on minorities or women if the policy is “job
related for the position in question and consistent with business necessity.”
That can be a complicated factual inquiry, which requires a close examination
of the nature of the job.
No doubt, when you come face-to-face with discrimination, it is a proverbial
Do you sing the blues? Or do you make that deal with the devil?
Do you fight in a way that could end an ongoing practice and spare others? Or is
it enough just to help yourself?
Emil Guillermo is an independent journalist/commentator. Updates at www.amok.com. Follow Emil on Twitter, and like his Facebook page. The views expressed in his blog do not necessarily represent AALDEF’s views or policies.