Susan Estrich

I try to keep track of idiotic lawsuits if only to counter my view that, for all its flaws, the legal system actually works better than most people think. Sadly, the idiotic suits – the one against McDonald’s because the coffee was too hot, or the one against the dry cleaner who supposedly ruined a lawyer’s suit (and offered to pay for it, before getting sued) – get more attention than the vast majority of cases that are filed because of legitimate disputes, which, in a nation governed by the rule of law, are best decided in court rather than by resorting to self-help.

But this is a new one, even to me: An actress has sued Amazon for revealing her age. It’s not that they got it wrong. No, it seems the problem is that this almost 40-something actress has gone to great lengths to hide her age – changing her name, purging records, etc. – so she could lie and audition for parts aimed for someone younger. And now Amazon has gone and ruined it for her. Imagine. Such nerve.

She is suing as “Jane Doe” so no one will know who she is – or look up her real age. Now, in my experience, Jane Doe (or Roe) suits are used when the issues involved really are so personal and confidential that access to the courts might effectively be blocked were the party to be forced to use his or her real name. Abortion is a classic example: Roe v. Wade.

But a suit brought by an actress who wants to hide her age?

I understand that age discrimination is a serious problem in the entertainment industry, not only for actors but also for writers and directors. The rule of thumb is that if you haven’t made it by 40, you won’t. Some years ago, an experienced screenwriter started submitting scripts in the name of a fictitious 20-something and went from being a guy who couldn’t get arrested in this town to a hot new writer. It’s not entirely irrational. Everyone is looking for the next Steven Spielberg or Aaron Sorkin, for someone who’s on their way up, not someone who has presumably peaked already. Unfair, yes. Maybe even unlawful. (The studios and agencies agreed to pay up a few years ago in a suit brought by writers, but since having done so, as anyone will tell you, nothing has changed.)

And the problem is particularly acute for actresses. There aren’t enough good parts for women older than 40, and for those few, there’s Meryl Streep, Glenn Close and the usual suspects, which doesn’t include most of the talented actresses who look familiar, but whom you can’t quite name.

That’s troubling. When I ask my industry friends about it, they always point to the statistics showing that people my age don’t go to the movies very often, as opposed to the teenagers and 20-somethings who will go more than once to movies they like. They are the box office targets, not us.

But what about the older men? Not just the famous ones, but the slightly less recognizable, too? Forty-something men definitely do better than 40-something women, for the simple reason that they can have romantic relationships with younger women. The “Mrs. Robinson” parts and “cougar” roles are definitely a specialty act.

In other industries, it’s difficult to justify age discrimination based on customer preferences. The airline industry was the classic example: Their argument that their passengers (mostly male) preferred to be served by attractive young females (a.k.a. stewardesses) failed when courts recognized, rightly, that the primary role of a flight attendant is to ensure the safety of the passengers, not to comfort them, and much less to be the objects of flirtation.

But movie roles present a more complicated picture. They reflect a preoccupation that is not limited to that industry. To oversimplify, what makes men attractive is money and power; what makes women attractive is being attractive, which in our culture means young.

Is that wrong? Sure. Is it unfair to older women? Sure. My friends lament it every day, as they hit brick walls and glass ceilings earlier than many of their male colleagues. And it is especially unfair because women often take time out to raise their children, taking them out of the game when their male colleagues are still in.

But a federal case – or even a state suit? Not by my lights. There are certain problems the courts can’t solve, and when people turn to them to do so, they make themselves and the courts look silly. No matter what the result – and I’d bet on a dismissal of this one, on First Amendment grounds if nothing else – time is wasted, and the system pays.

Lawyers are under an ethical obligation not to bring frivolous suits (even if they get on television when they do). It’s our job to tell would-be clients, no matter how angry and frustrated, that a lawsuit is not the answer. Doing so may cost us a fee, but not doing so violates our obligations to both the client and the courts.

Somebody did something wrong here, something that is a threat to the respect for the rule of law that is at the core of our system. And it wasn’t Amazon.


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