Sept. 23, 2013— -- As "American Idol" begins its 13th season with a new judges' panel, new producers and a whole new slew of hopefuls, the show's business practices are under scrutiny as a discrimination lawsuit filed by 10 black former contestants continues to wind its way to court.
The plaintiffs, all of whom were disqualified from the show over six seasons for reasons other than singing -- including criminal history -- were recently issued notices of "right to sue" by the Equal Employment Opportunity Commission, allowing the 429-page lawsuit they filed in July to move forward.
In response, "American Idol," FOX and the show's production company, 19 Entertainment, have switched from employment attorney Jonathan Sulds, who represented them before the EEOC, to Daniel Petrocelli, the trial attorney who successfully sued O.J. Simpson on behalf of Ron Goldman's family.
Petrocelli declined to comment for this story.
The lawsuit argues that producers over the course of 10 years have practiced a pattern of racial discrimination that stems from using black male contestants' arrest history against them. The suit points out that 31 percent of all "American Idol" semi-finalists who were black males were disqualified for reasons "unrelated to their singing talent." Moreover, the lawsuit adds that, over the course of 10 years, "there has never been a single white (or non-black) contestant disqualified from 'American Idol' -- not ever."
'American Idol' Double Standard?
FOX and the show's producers have denied any discrimination, pointing out that 33 percent of, or four out of the past 12, winners, including last year's Candice Glover, have been black or biracial.
In their May response to the EEOC obtained by ABC News, "Idol" producers say there is no evidence that "the particular disqualification of these specific individuals (the plaintiffs) had anything to do with their race."
But the plaintiffs have cleared the first hurdle -- all employee discrimination claims must first go through the EEOC -- in pursuing their case. Because more than five months had passed since the plaintiffs first filed charges of racial discrimination with the EEOC in January, the government commission automatically issued the right-to-sue letters, allowing the plaintiffs to pursue the lawsuit in court.
In order to prove that the show discriminated against the young men after asking about their arrest history, the plaintiffs must first prove that they were employees of the show, since asking an employee or employee applicant about previous arrests -- and not convictions -- is a violation of California law.
"American Idol" has repeatedly denied that the plaintiffs were employees.
In its May response to the EEOC, producers maintained that the plaintiffs were "contestants on a reality singing competition, not employees under Title VII." (Title VII of the 1964 Civil Rights Act protects individuals against employment discrimination on the bases of race and color, as well as national origin, sex and religion.)
ABC News has obtained documents of one of the plaintiffs, Corey Clark, which refer to him as an "employee," as well as paystubs that show he was paid wages in line with the television union's contract with the show.
Among the forms signed by Clark, the only one of the 10 plaintiffs to make it to the top 10 finalists round, were an I-9 employee eligibility verification form, an employment deal memo listing him as a principal performer and an American Idol Productions, Inc., "Production Personnel Deal Memo" that continually refers to Clark as the "employee."
Click here to see the documents
Clark also signed a contract with AFTRA, the television performer's union. Contestants are required to join once they reach the top 10 or 12 -- a fact made public by the union in 2007. According to Clark's contracts, his wages per appearance ranged from $648 to $1,251.
Clark was disqualified from the show in season two with nine contestants remaining after producers said he was less than forthcoming about a previous battery arrest involving his younger sister and police. According to his attorney, Clark did disclose the arrest to producers during the Hollywood round. Two of the charges were later dropped and Clark took a plea to a misdemeanor obstruction of justice charge.
In addition to the discrimination lawsuit, Clark filed a separate defamation lawsuit in January against FOX, E! Entertainment and others for comments he says they made about his exit from the show as well as comments made about his later claim that he had an affair with then judge Paula Abdul.
Clark, now 33, spoke about their relationship at length in a 2005 interview for ABC News' "Primetime Live," saying what started off as a platonic relationship between the then 22-year-old contestant and then 40-year-old judge soon became sexual. In a statement to ABC News at the time, Abdul said she "will not dignify the false statements made by Corey Clark with a response."
Clark's employment status is significant because if he was considered an actual employee, then "all other Claimants in this proceeding necessarily were, at the very least, employee applicants being considered for the employment position of 'principal performer' as an American Idol Finalist," and would, therefore, be protected under Title VII, the plaintiffs' attorney argued in a June reply to the EEOC.
Their attorney claims that the show "fraudulently concealed the true legal status of the participants" by having them sign an initial "Contestant Agreement" at auditions that expressly states they are not to be deemed employees or independent contractors of the show. Instead participants are merely "volunteers" and/or "licensors" of their names and likenesses.
By classifying the plaintiffs as mere "volunteers" or "licensors" rather than as employees, their lawyer argues, "Idol" has "managed to avoid significant federal and state tax laws applicable to employees, among other benefits" and "avoid statutory restrictions concerning employers' hiring, treatment of and termination of employees in the workplace."
All of the plaintiffs who made it past initial auditions and were given a "golden ticket" to Hollywood were then required to disclose their arrest history and were subject to a background check conducted by the show, the plaintiffs' suit states. Plaintiffs who objected to signing any of the forms were threatened with being expelled from the show, according to the lawsuit.
The plaintiffs contend that any adverse findings were then illegally disseminated to the media and later used by the show's producers to humiliate them in a "highly visible public forum" on the show.
The plaintiffs go on to say that the show "implemented a systemic, long-standing practice of publicly humiliating Black contestants through pre-scripted public disqualifications based on criminal record history, while at the same time championing the advancement of White contestants whose criminal records were far more egregious."
The show's producers argued that they use background checks to insure that contestants who may become finalists have no legal entanglements that might "interfere" with or "embarrass" the show. In their response to the EEOC, producers said their biggest concern with a contestant's arrest history was not having that person available because of pending legal matters.
The response also pointed out that 31 African Americans with criminal records were never disqualified and were allowed to participate in the show.
The issue of whether they were employees is not the only significant battle the plaintiffs will have to fight in their lawsuit. They must also prove that the discrimination took place within 300 days of filing their action.
Producers claims that the charges took place much earlier than the required 300 days before the lawsuit was filed. The plaintiffs respond that there's been a "pattern and practice" of discrimination that most recently occurred when Jermaine Jones was booted off the show for outstanding warrants during season 11. They say Jones's disqualification in March 2012 was within the 300-day period of first filing the petition with the EEOC in January 2013.
Jones did not join the lawsuit and has dismissed the plaintiffs' allegations as "ludicrous."
Frenchie Davis, who is not a plaintiff in the lawsuit but was a semi-finalist in the second season until she was disqualified because of topless photos taken earlier in her career, wrote on her Facebook page after news of the lawsuit broke, "American Idol WOULD NOT HAVE DISQUALIFIED ME IF I WERE WHITE. PERIOD. I don't care how many Black winners they've had.