Older TV Writers Press Case

They color over the gray, fudge birthdates, drop shows prior to 1997 from their resumes and buy trendy outfits for meetings with producers.

One sitcom veteran said that, before she attends a meeting, she goes to a salon to have her eyebrows plucked, her make-up applied and her hair blown out. That’s nothing, she said, compared with her friends who try to vanquish wrinkles with collagen injections.

Aging actors trying to win parts written for ingenues?

Nope. They are writers trying to win jobs scripting lines for TV shows aimed at under-35 viewers.

In an increasingly youth-obsessed Hollywood, many writers say job offers and incomes plunge after 40. The ageism complaint has dogged the industry, particularly television, for years.

Yet in the decade or so since a documentary, “Power and Fear: The Hollywood Grey List,” put the bleak outlook for older writers in the spotlight, few writers have been bold enough to go public with ageism complaints and none has taken a case to court, perhaps out of fear that whistle-blowing would extinguish any hope of working in this town again.

Until now.

In a novel and far-reaching class-action lawsuit, 28 television writers have put their names to ageism charges against more than 50 TV networks, studios, production companies and talent agencies.

“It’s breathtaking in its ambition, all the people they are suing,” said David Kadue, an employment lawyer with Seyfarth Shaw’s Los Angeles office who represents management against discrimination claims. “This is very ambitious in alleging an industrywide practice.”

The writers, including some with Emmys and credits ranging from “The Brady Bunch” to “Miami Vice,” allege that the industry engages in a “graylisting” conspiracy that has intensified since the 1980s when advertisers began demanding shows for the sought-after 18-to-34 age group, whose buying habits are more susceptible to commercial influence than those of older viewers.

The 81-page complaint, filed in federal court in Los Angeles on behalf of as many as 7,000 writers, is a potential legal bombshell that attacks not just one employer, as hiring discrimination cases usually do, but an entire industry--an almost unheard-of tactic that is expected to draw the attention of lawyers and employers inside and outside the entertainment community.

Because of the high profile of the industry, the writers’ case against Hollywood could affect the way employers in television and elsewhere make hiring decisions even before it is resolved, said Larry J. Shapiro, publisher of the California Employer Adviser Newsletter.

And, he said, it is expected to raise workers’ awareness of age bias, an area of litigation that lawyers already expect to intensify in the next few years because most baby boomers are over 40 and now may avail themselves of the protections of the federal Age Discrimination in Employment Act.

“I think it’s going to make the people . . . be much more careful about documenting their hiring decisions,” Shapiro said.

In addition to unspecified damages, the suit seeks a remedy that could roil the industry even more than a big payout: Court supervision of network and studio hiring for five years or longer, as long as it would take to wipe out the alleged ageist exclusion of writers 40 and older.

Court supervision is not uncommon in class-action discrimination cases. The same week they filed suit on behalf of the writers, the lead law firm, Sprenger & Lang, won an $8-million settlement from CBS Inc. That lawsuit was on behalf of more than 200 women technicians working at TV stations across the country who claimed they were victims of sexual discrimination in pay and promotions. The settlement, pending court approval, also would place CBS under court supervision for four years, force operational changes and require reports on the status of women technicians.

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Christine A. Littleton, a UCLA professor who teaches employment-discrimination law, said the scope of the writers’ case is unusual and potentially groundbreaking.

“This could be amazing. It’s a very interesting use of the class-action technique,” Littleton said. “It’s a real interesting case for how useful the age discrimination act is in large-scale cases as opposed to individual lawsuits where it has mostly been used. And it’s also really interesting from the standpoint of the employment practices of the entertainment industry.”

Some of the defendants believe the suit paints with too broad a brush.

Hugh Dodson, chief operating officer of Gersh Agency, said he was baffled that the firm was named as a defendant because it has no record of representing or being approached by any of the plaintiffs.

“We kind of feel like there is a wide net being cast here and we’re being thrown into it, and we’re clearly not culpable,” he said.

Martin Shapiro, whose talent agency also was named, was similarly surprised that the suit targeted agents at all.

“We’re employment agencies. We’re employed by the talent to represent them. We don’t hire them. We don’t pay them. We don’t make any money unless they make money,” Shapiro said, adding that his firm represents many writers over 40, including one of the plaintiffs.

Spelling Television employs six people older than 40, according to a statement from Chairman Aaron Spelling. “They are all executive producers as well as writers and, by the way, are doing a fantastic job for us,” Spelling said in the statement. “No writer should ever be judged by their age.”

Most defendants declined to comment or issued statements denying they engaged in ageism. One studio source familiar with the suit noted that a 1998 study commissioned by the Writers Guild of America West found the number of writers over 40 working in television increased slightly, from 53% to 57%, between 1991 and 1997, and said that shows the suit “cherry-picks” statistics in an effort to make the employment of older writers appear lower overall than it is.

“Anecdotally, you are going to find lots of writers not working in the Writers Guild,” he said. “That’s just the type of industry it is.”

Paul Sprenger, a Washington, D.C.-based lawyer leading a bicoastal team representing the writers, said, “We did not cherry-pick the numbers” of writers over 40 on television shows.

“It’s worse in some areas than others,” he said. “But the truth is, it’s what we call statistically significant in all categories and overall. The statistics don’t lie.”

Of the WGA’s 9,500 writers, two-thirds are over 40. Yet a third or fewer over-40 writers worked on 62 of the 122 night-time TV series for which records were available, according to the suit’s representation of the WGA study.

The suit also contends that television writing is unusual in that earnings fall with age because older writers are employed for briefer periods than younger writers. In 1997, for instance, median earnings for employed writers in their 30s was about $84,000, compared with $70,000 for writers in their 40s, $50,000 for writers in their 50s, and $36,000 for those in their 60s, the suit says.

The statistical disparities occur not by accident but by ageist customs, the suit says. The filing repeats alleged ageist remarks of some network executives, producers and agents. In one instance, the suit says, the late Brandon Tartikoff, who, as president of programming for NBC, allegedly “pronounced a policy of not hiring any writers over the age of 30.”

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The suit quotes Paul Haas, senior vice president of the talent agency International Creative Management, as saying, “Age matters. When we have someone network executives haven’t heard of, they want to know how old the writer is. When we pitch somebody fresh out of college who has youth and vitality, executives like it. If there is somebody who has a bunch of credits and it appears they have been around for a while, they might not like it as much.”

The suit says Haas made the comments to USA Today in 1998.

Joseph Posner, an Encino lawyer who heads the Los Angeles chapter of the National Employment Lawyers Assn., said that type of talk can be powerful evidence in an employment discrimination case.

“If I had a case where employers made those comments about their direct employees, I could almost take this to the bank,” Posner said.

Shapiro, the talent agent, acknowledged that older writers have a hard go of it in Hollywood.

“I see older writers having trouble getting employment. There is no question about it, whether anybody can justify that it’s age discrimination or whether there are other rationales for it,” he said. “It’s very disheartening to see somebody build a career and then all of a sudden to not get work, where it isn’t all of a sudden they stopped doing good work.”

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Shapiro said he believes writing often improves with age and experience. But, he said, he does see instances where younger writers are perceived as having an edge.

“If somebody is doing a youth comedy, then they feel much more comfortable if they find a youthful writer to do it because that writer has a better feel for the people and the jargon,” Shapiro said.

In the lawsuit, older writers allege that networks and studios have wrongly assumed that older writers could not script shows that appealed to the under-35 audience that advertisers desire.

“Relying on customer preferences is not going to be a defense,” said Kadue, the management lawyer. “That’s not a defense any more than it was a defense for Southern restaurant owners in the ‘60s to refuse to hire black waitresses because the customers preferred white waitresses.”

The lead law firm for the writers has won two of the nation’s three largest judgments on age discrimination in employment--$58.5 million against First Union Bank and $28.5 million against Ceridian Corp. Sprenger, the lead lawyer, said he has taken 15 employment-discrimination class-action suits to trial, five of them age cases.

What sets the writers’ case against Hollywood apart, he said, is the apparent widespread acceptance of ageism, from talent agents to studio heads.

“They say, ‘This is the greatest script I’ve ever seen, but you’re 40 and I can’t use it,’ ” Sprenger said.

“If they said the things that they say about older writers . . . about blacks, the journalists and the public would say, ‘My God, what a bigot!’ They say it about old people and it’s just sort of accepted,” he said. The older writers “say, ‘I’ll just try to get a younger writer to front my script.’ Most people just sort of accept it and go away mad.”

Feeling they had little to lose, the writers began planning the suit with Sprenger about a year ago. Since the suit was filed last month, 100 new writers have asked to join, and Sprenger is so confident of the writers’ case that he expects his firm to advance them a minimum of $1 million in legal services.

The lead plaintiff, Tracy Keenan Wynn, 55, a fourth-generation member of an entertainment dynasty, won Emmys for “The Autobiography of Miss Jane Pittman” and “Tribes.” He earned a substantial income from television writing for more than 25 years until about 1997 when, despite his best efforts, the work dried up and his earnings dropped to nothing, the suit says.

The loss of his livelihood has been emotionally difficult for the father of three, caused him to lose his home and forced him into bankruptcy, said Sprenger, who has instructed his clients not to discuss the case.

“His is not a unique story,” Sprenger said. “People are earning $100,000 or $200,000 a year, have a mortgage and tuition obligations, and suddenly they are earning zero or close to it, and that causes severe financial crisis.”

Still, many older writers are working in television. Last year at age 51, “JAG” writer Paul Levine said he believed he was the youngest rookie writer in Hollywood. The CBS show stands out for its older writing staff, including one in his 30s, another in his 40s and four in their 50s.

Levine, who had a career as a lawyer and wrote eight novels before he got the “JAG” job, said he hasn’t felt the sting of ageism.

“It’s never happened to me,” he said. “But from what I’ve been told, I’m very lucky to have a job.”

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For a long time, Hollywood writers believed that they could sustain careers in television through age 50, but then the age ceiling seemed to drop to 40, said Adam Lapidus, a 37-year-old writer whose credits include “The Simpsons,” “Full House” and “Who’s the Boss?”

“I thought, ‘If I can work until 50, I’m thrilled,’ and suddenly it became 40, and it became scary,” said Lapidus, who got his first job out of college on the strength of a script he wrote for “Golden Girls.”

“Here I was, a 21-year-old male and I wrote a script about four menopausal women. I got the job because I had their voice,” he said. “The point of being a good writer is you can write for anybody.”