1776 Hair Plan-Related Lawsuit to Continue

It has been over two-and-a-half years since Zuri Washington sued the 1776 tour producers for racial discrimination and retaliation, and finally a court has addressed the substance of her allegations. After a venue change and the filing of two amended complaints, a judge for the United States District Court for the District of Maryland dismissed Washington’s claims for discrimination but allowed her claims for retaliation to continue.

As a reminder, Washington had been cast as Robert Livingston in the 1776 tour, but there were early tensions that she alleges arose after producers chose not to honor her chosen hair plan preference. There was also a meeting about COVID protocols at which Washington spoke up. Afterward, she alleges, her agent was called by General Manager Madeline McCluskey, who described Washington as “unruly.” According to Washington, after she expressed a desire to submit a written complaint of racial discrimination to human resources, she was terminated a few stops into the tour. More details about the allegations, with quotes from Washington, can be found here.

It is important to realize that when dealing with a motion to dismiss, the Court is not saying Washington should win at trial or that her allegations will be borne out by evidence. The Court has to construe the complaint in the light most favorable to Washington, accept all allegations in the complaint as true, and draw all reasonable inferences in favor of Washington. Having done so, the Court then asks whether the complaint’s allegations contain sufficient facts to state a legal claim for relief that is plausible. So basically: “We’re going to assume this stuff is true. If it is, can you succeed legally?”

In this case, the Court answered that question in the negative as to the discrimination claims. That is because the Court held that while the complaint alleged confusion over Washington’s hair plan, denial of a wig, negative comments about her personally, and more, nothing alleged impacted her pay or position. The Court then held that while her firing was certainly an adverse action, she had not sufficiently pled it was because of race. So, for example, she didn’t plead that non-Black employees were treated better in similar situations. And then, of course, she pled that she was fired after announcing she would file a discrimination complaint. That isn’t necessarily discrimination; it points more to retaliation. The Court ruled that the retaliation claims were sufficiently pled, so the case will continue based on them.

Followers of such things may remember that Kim Moore’s discrimination claims against the Hadestown team were also dismissed (though on very different grounds), but the retaliation claims were kept alive. That case then settled for an undisclosed figure.

In addition to the above, the Court ruled that named defendant National Artists Management Company (NAMCO) does not belong in the case because Washington had not plausibly pled that NAMCO was her employer. According to the complaint: “NAMCO had contracted with NETworks to produce the show. NETworks, in turn, contracted with Gentry to manage the Show’s crew and cast. NETworks also established 1776 Touring, LLC as a ‘pass-through’ LLC that entered into employment contracts with cast members and paid wages.” NETworks Presentations, LLC, 1776 Touring, LLC, and Gentry & Associates, Inc. will remain in the case.

All the dismissals were “without prejudice,” which means Washington could conceivably file another amended complaint bulking up the allegations, in which case there would be another cycle of motion to dismiss briefing. There is no indication currently that this will occur.

“Ms. Washington is excited to proceed to discovery and looks forward to ultimately holding NETworks and the other defendants liable in front of a jury for unlawfully firing her from the cast of 1776 in retaliation for simply exercising her right to object to discrimination in the workplace,” Tanvir Rahman of Filippatos PLLC, which represents Washington, said in a statement to BroadwayWorld.

Emails to the 1776 tour press team seeking comment on the litigation have not been returned.