Acting on a Legality

Lawyers for the Spelling Entertainment Group call it her “material change.” Hunter Tylo calls it her baby.

Tylo, a 33-year-old up-and-coming actress, is pregnant. And because her pregnancy is not in the script, neither is the actress.

According to producers of Aaron Spelling’s steamiest prime-time series, “Melrose Place,” there is no place in the show for Tylo until she is back to the state she was in when they offered her a role--that is, the unpregnant state.

“It’s clear she was terminated because of her pregnancy,” says Tylo’s outspoken attorney, Gloria Allred.

“It’s a creative decision, no more, no less. And it is entirely legal,” says Spelling’s general counsel, Sally Suchil.

Tylo has filed suit in California Superior Court in Los Angeles seeking unspecified damages from the Spelling company. Attorneys on both sides say this is the first such test of the 1978 U.S. Pregnancy Discrimination Act. While pregnancy discrimination complaints are increasing nationwide, most have dealt with traditional business settings and the more predictable “Mommytrack” complaints of derailed careers.

Tylo’s case, not expected to go to trial for months, could have strong reverberations in Southern California, as well as in New York City, where the livelihoods of many actresses and models depend on the shape of their bodies.

Although state and federal laws prohibit discrimination against pregnant women by employers, gender discrimination or even selective hiring of individuals with specific traits such as youth or fair skin can be exempted if the hiring qualifies as what the law calls a Bona Fide Occupational Qualification.

Ellen J. Vargyas, legal counsel for the Equal Employment Opportunity Commission, says such exemptions are rare and “must go to the essence of the business.” Vargyas calls Tylo’s case “an interesting one” for its focus on authenticity: “For example, could you refuse to hire a woman to play Hamlet? How about a pregnant woman? In the entertainment business, those issues are certainly out there.”

Lawyers for Spelling, whose production empire has included such sexy TV hits as “Charlie’s Angels,” “The Love Boat,” “Beverly Hills, 90210” and “Savannah,” say the need for a believable character is a proper and legal consideration.

“The character we had in mind for Hunter Tylo was a seemingly happily married woman who starts having affairs,” says Spelling attorney Suchil. “Had we kept Tylo in the role, she would be going to bed with the first guy when she’s about seven months pregnant. Obviously, this wouldn’t work.”

Tylo, who has played the glamorous Dr. Taylor Forrester on the daytime drama “The Bold and the Beautiful” for the past six years, was chosen for a new role by Spelling in February. But in March, Tylo learned she was pregnant. The actress and her actor husband, Michael, have two sons, ages 15 and 8. “We were thrilled to find out there was another baby on the way,” the actress says. But when her agent informed “Melrose Place” producers she was expecting in November, Tylo received a letter from Spelling Television lawyer Cortez Smith notifying her that the show’s agreement with her was terminated.

“Although we wish you much joy in this event, your pregnancy will result in a material change in your appearance,” Smith wrote. “Your material change does not conform with the character you have been engaged to portray. This character is by necessity not pregnant. . . .”

The Spelling company claims a contractual right to terminate Tylo should she be incapacitated or “suffer any material change” in her looks. The company offered Tylo a different part for the 1997-’98 season if “Melrose Place” is picked up for a sixth season.

“This is a show where our characters parade around in various states of undress,” Suchil says, “and our decision not to use Ms. Tylo for the upcoming season had nothing to do with the company’s using or retaining pregnant women on the show. Last season, we had a pregnant character, as well as a pregnant director.”

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Indeed, veteran Beverly Hills publicist Dick Guttman suggests, the growing number of female producers and directors may be making it easier for actresses to have it all.

“With more women making important decisions in the entertainment industry, we’re seeing more flexibility when it comes to pregnancy,” he says.

Martha Williamson, executive producer and head writer of the CBS series “Touched by an Angel,” went out of her way to help a pregnant actress keep her role as an angel. “Roma Downey, who plays the angel Monica, came to me as soon as she found out she was pregnant. Of course, we were all thrilled for her, but unlike other shows where you can marry off a pregnant character, there was no way to explain a pregnant angel,” says Williamson, who successfully shot around her pregnant angel’s middle. “This is just television, after all. At best, television shows go into syndication, but babies--babies last forever.”

The issue of how to treat actresses when they become pregnant is not new and has been resolved in a variety of ways. When Shelley Long was expecting daughter Juliana, “Cheers” writers camouflaged Long’s expanding girth behind the bar--and in one episode, even stuck her character beneath the floorboards. But when another “Cheers” player, Rhea Perlman, was pregnant, her condition was easily incorporated into the script since pregnancy was so consistent with ever-fertile Carla.

Marilu Henner kept working through two pregnancies in 18 months. “I’ve been not pregnant, playing pregnant. I’ve been playing not pregnant, but pregnant. And I’ve been playing pregnant when I was pregnant. And I can tell you, it all comes down to costuming and camera angles,” says Henner, who was pregnant while working on the CBS series “Evening Shade,” her talk show “Marilu” and a made-for-cable movie.

But when movie actresses discover they are pregnant, it is not unusual for them to quit the role altogether. Pregnancy forced Robin Wright to give up the role of Maid Marian in “Robin Hood.” But in an odd twist of fate, she was selected to replace the pregnant Annette Bening nine months later as the lead in the 1992 Irish drama “The Playboys.” Bening, like some other well-established actresses, chose “temporary retirement” during her pregnancies.

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Although three pregnancies have not slowed superstar Demi Moore’s trajectory, few women are as brave--or as buff--as Moore was when she flaunted her pregnancy on the cover of Vanity Fair. Less famous models, in or out of movies, have trouble finding any work at all when they are obviously, or even a little bit, with child.

According to Nina Blanchard, high priestess of the high fashion modeling business, the choice between motherhood and cover girl can be excruciating. “Yes, girls did come to me at times looking for advice on whether to have an abortion or quit working at a critical time in their careers.”

And for women on the threshold of stardom, the choice between motherhood and career is one women should not be forced to make, Tylo says.

“This was a dream career opportunity for Hunter, a chance to move from daytime drama to prime time,” says Allred, who adds that her client’s recent return to the set of “The Bold and the Beautiful” underscores their claim that the actress is fit and able to work.

According to the EEOC’s Vargyas, there are no known precedents for lawsuits such as Tylo’s. “The major case in pregnancy discrimination law involved a battery factory that refused to hire any women who could not demonstrate they were infertile. The company claimed there were [occupational] health concerns to women and children, but the U.S. Supreme Court held that the women’s rights were being violated, that pregnancy has nothing to do with making batteries.”

Late last month, Spelling star Josie Bissett, 26, announced she would voluntarily leave her “Melrose Place” role after 4 1/2 years as Jane Mancini to have a baby. In a press release, producers were quoted as congratulating her with many of the same phrases used to dismiss the pregnant Tylo: “We wish her much joy and happiness in this special time of her life.”