SEAL Team Discrimination Lawsuit: CBS Uses First Amendment to Defend Diversity Hiring

CBS has filed a motion to dismiss the lawsuit filed by a longtime script coordinator who alleged that in his years-long bid to be promoted to staff writer, he was discriminated against for being a “white, heterosexual male.”

CBS made its motion on the grounds that CBS “has a constitutional right under the First Amendment to select the writers whose work shapes CBS’s artistic enterprise.”

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Brian Beneker has been a script coordinator for SEAL Team since March 2017 (minus a brief gap during Season 2). His lawsuit, filed in February, alleges that he was repeatedly denied a staff writer position even as CBS “hired and promoted numerous others who lacked experience and screenwriting credits but were part of the favored hiring groups; that is, they were nonwhite, LGBTQ, or female.”

Beneker alleges that since June 2019, when he first sought employment as a staff writer, SEAL Team hired six staff writers instead of him — specifically, a “Black male” and “Black woman” (both hired in Season 3), a “white” “female former writer’s assistant” (hired in Season 5), a “Black” “female writer’s assistant” (hired in Season 6), a “white,” “lesbian” “female writer’s assistant” (also hired in Season 6), and a “white” “female writer’s assistant” (hired in Season 7).

Beneker’s suit notes that CBS in July 2020 set a target to have a minimum of 40% BIPOC representation in their writers’ rooms, beginning in 2021-2022.

The “race and sex ‘balancing’ in the SEAL Team writers’ room … created a situation where heterosexual, white men need ‘extra’ qualifications (including military experience or previous writing credits) to be hired as staff writers when compared to their nonwhite, LGBTQ, or female peers, who require no such ‘extra’ qualifications,” Beneker’s suit reads.

Beneker is seeking a full-time job as a producer, and compensatory and punitive damages.

CBS’ motion to dismiss argues that under the First Amendment, “an entity engaged in expressive communication may select individuals whose presence or absence would affect the entity’s ability to communicate its own preferred message,” and that “limiting CBS’s ability to select the writers of its choice — as Beneker seeks to do here — unconstitutionally impairs CBS’s ability to shape its message.”

“It is not relevant to this analysis that Beneker disagrees with CBS’s alleged stance on diversity in writers’ rooms,” the motion reads. “The rule of speaker’s autonomy applied in [precedents] means that CBS, not Beneker (or the government), has the sole right to decide what artistic content to produce and how to produce it. The rule also means that CBS, not Beneker (or the government), is solely entitled to decide what messages it seeks to convey in its artistic content and what associations might advance or impair those efforts.”

CBS’ motion also argues that two of the six SEAL Team hiring decisions cited by Beneker fall outside of the statute of limitations, while three others are not cognizable because the hired writers were of the same race (white) as Beneker.

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