By: Gillian Lee
Volume X – Issue II – Spring 2025
I. INTRODUCTION/BACKGROUND
Reality television has become increasingly popular, from family and dating series, to competition shows. Many trace the popularity of reality television to 2000, with the premiere seasons of hit shows Survivor and Big Brother. In 2002, American Idol and The Bachelor began, and in 2003, America’s Next Top Model. 2006 marked the beginning of The Real Housewives franchise. [1] Reality television has increasingly infiltrated our screens since the start of the 21st century.
Individuals often watch these shows for pleasure and entertainment, largely neglecting any meaningful consideration of what these shows entail for participants. Reality television stars sign extensive contracts full of lengthy legal jargon, detailing what rights they are entitled to before, before, and post-filming. These contracts frequently shield production companies from liability, which raises the possibility of ethical legal challenges where producers use contestants as pawns for ratings and costcutting measures. Television shows often dictate participants’ schedules, what they eat and drink, and their conversations. Producers have the power to spin the narratives in whichever way they deem appropriate. Many participants also come onto shows with limited to no television presence beforehand, raising the chance that they have limited bargaining power in their contracts and more.
However, ultimately, the participants signed contracts and entered voluntarily onto their respective shows–often in search of fame themselves–so it is arguably the fault of these consenting individuals to whatever subsequently ensues. Nonetheless, many shows perpetuate mental health and physical safety tolls on their stars, and it is difficult to say that the shows’ casts know what they signed up for. Concerns include issues like racial discrimination, sexual assault, and alcoholism. Many stars, especially famous ones in the world of television, have started to speak up for the rights of reality television contestants. They argue against “inhumane” conditions and, recently, for a reality television guild that would afford them similar rights to actors in SAG-AFTRA and other entertainment guilds. [2]
II. CONTESTANT CONTRACTS
Unconscionability is one central doctrine used against contracts. To qualify as unconscionable, contracts must often satisfy both types, meaning there is “at least one party that does not have fair/meaningful choice, there’s misrepresentation, or unequal bargaining power among other factors” and that the contract unfairly benefits one side. [3] Unconscionable contracts have two types of unconscionability: procedural and substantive. To qualify as procedural unconscionable, one party must have unfair choice, misrepresentation, or unequal bargaining power in the development of the contract. On the other hand, a substantively unconscionable contract deals with the actual terms of a contract, where the terms discriminate against one party, whether that be in an advantageous or disadvantageous manner. In Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965), the court stated that “Unconscionability has generally been recognized to include an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party.” [4] As most shows take place in California, California Civil Code §1670.5 typically applies and requires both procedural and substantive unconscionability. [5]
Contracts usually protect studios from publicizing any possibility of disparaging content. For instance, the American Idol Season 12 contract includes, “I understand that I may reveal and other parties may reveal, information about me that is of a personal, private, embarrassing or unfavorable nature, which information may be factual and/or fictional.” [6]
Reality stars have yet to succeed in challenging a contract as unconscionable, mostly due to the fact that they are unlikely to satisfy the procedural requirement because they enter into contracts voluntarily. [7] For instance, while they may regret the decision afterward, there is no legal precedent for unconscionability as reality television stars sign their personal privileges away, not constitutional rights.
Nondisclosure agreements (NDAs), which keep certain information confidential, also play a key role in safeguarding studios and producers from legal ramifications. Real Housewives star Bethenny Frankel criticized studios’ use of NDAS for reality television participants, citing that California Government Code section 12964.5(2)(A), which prohibits employers from forcing employees “to sign a nondisparagement agreement or other [document] to the extent it has the purpose or effect of denying the employee the right to disclose information about unlawful acts in the workplace.” [8] Bravo responded that NDAs are not meant to authorize unlawful acts, writing in their statement, “[confidentiality clauses] are not intended to prevent disclosure by cast and crew of unlawful acts in the workplace, and they have not been enforced in that manner.” [9] NDAs are traditionally interpreted as to protect studios from participants exposing studio secrets or behind-the-scenes exclusive knowledge. However, as Frankel articulated, they can also protect studios against unlawful conduct. Some studios have moved to modify their NDAs, and these actions appear to be the result of the rising public outcry against harassment in entertainment workplaces. For instance, in 2019, NBCU moved to release NBC News employees from NDAs if their statements regard sexual harassment. [10]
III. REALITY TV: CASES AND ISSUES
i. Mental and Physical Health
Many reality television participants have sued producers over mental and physical health complaints and issues. For instance, Trang Dang sued Love is Blind creators for “false imprisonment” where she and her cast members could allegedly not leave their hotel rooms or have their phones, and for negligence and claims of sexual assault. [11] A Texas trial court denied the motion, citing the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2022. In Kinetic Content, LLC v. Tran Dang in May 2024, the Court of Appeals of Texas affirmed the trials court’s decision concerning the false imprisonment and negligence claims but reversed the part “denying Kinetic’s special appearance as to the two assault claims and render judgment granting the special appearance as to those claims,” and reprimanded for further proceedings. [12]
Another Love is Blind contestant, Jeremy Hartwell, sued Kinetic Content in 2022 as a class representative for “unsafe and inhumane working conditions for the cast,” including an overencompassing, strict schedule with “sleep deprivation, isolation, lack of food, and an access of alcohol.” His complaint also addressed denying cast members of “proper minimum wage and overtime pay” or meal times. In July 2024, Netflix agreed to a nearly $1.4 million settlement to be paid to lawyers and approximately 144 cast and crew members of Love is Blind. [13]
Leah McSweeney filed a 109-page lawsuit against Bravo, NBCUniversal, and producer Andy Cohen in February 2024. [14] McSweeney starred in Real Housewives of New York (RHONY) and Real Housewives Ultimate Girls Trip, where she was a fan favorite due to her extreme behavior and drama. McSweeney was a recovering alcoholic before starting her reality television career, and in the episode “Hurricane Leah,” she relapsed. The episode was the highest-rated episode of that RHONY season. While this was perhaps the pinnacle of her damaging experience on the show, she also cites the toxic, “rotted workplace culture” that, to gain viewership and establish the show, pressured the stars to drink alcohol. [15]
It is compelling to consider RHONY alongside the reality television Bachelor franchise. In the Bachelor franchise shows, contestants are limited to consuming two drinks per hour, following an alleged sexual assault in the fourth season of Bachelor in Paradise in 2017. [16] The environment in the Bachelor franchise is notably different than in RHONY, as the main casts in RHONY feature only female participants. It is then possible that drinking regulations become stricter when both males and females are present, with fears of sexual assault. It is also plausible that when women comprise the cast, producers may be more willing to create drama, amplifying the common trope of the female “spectacle” in film and television.
ii. Participants vs. Employees
In December 2024 the National Labor Relations Board’s (NLRB) filed a complaint against Delirium TV and Kinetic Content, the producer of Love is Blind, that contestants should be considered “employees” instead of “independent contractors.” [17] This has extraordinary consequences on labor rights, especially in the television arena. According to an NPR article, this is the “first major labor action filed on behalf of unscripted TV cast members, and could lead to big changes to reality shows behind the scenes of and even what we see on our screens.” [18] NLRB has based its claim on the show’s cast conditions where contestants have cited the show’s extensive control over their lives from scheduling to behavior protocols, and the fact that they receive daily stipends (which could be considered wages). The complaint orders contestants to be considered employees and to receive back pay for lost wages retained during filming. [19]
This could have important implications for worker rights as employees are entitled to minimum wage, unemployment insurance, and other advantages. Employee status also affords workplace safety regulations and possible insurance and retirement benefits. On the other hand, independent contractors do not receive this security–although they do have increased work flexibility. [20]
If reality television contestants were afforded employee status, this would translate to increased costs for producers and production companies. There would also need to be more recorded documentation of events on sets and administrative precautions.
The case arguably amplifies the possibility of creating a reality television show guild, especially after the SAG-AFTRA strike. Reality television, or any unscripted show’s, members are not included in the actors guild and therefore do not receive any grouped benefits that these organized groups would otherwise provide. Reality television was an especially important revenue enhancement and publicity mechanism during the strikes since they have much lower costs compared to their scripted counterparts, providing an enhanced perspective on what reality television provides to audiences and studios alike. The National Labor Relations Act (NLRA) protects private-sector employees, including rights to form unions, bargain collectively, and protection from employer retaliation. [21] Since reality television stars are not employees, but rather “participants,” they do not retain these rights.
If the NLRB succeeds, their case could set a precedent for other shows, especially dating shows with unsuspecting, new-to-television cast members.
IV. CONCLUSIONS AND POTENTAIL SOLUTIONS
Lawsuits and legal challenges do not appear to be a viable solution for reality stars seeking compensation or justice. The balance between their voluntary commitment to a show and producers’ possible abuse is difficult to discern and can depend on the show and its network. It seems that family networks like ABC have taken extra precautions, whereas drama-driven networks like Bravo continue their time-tested approaches.
Extralegal measures, like forming organizations or social media campaigns, appear to be the best solution. For instance, Love is Blind alums Jeremy Hartwell and Nick Thomson created The Unscripted Cast Advocacy Network (UCAN) in 2023 with a mission of a more ethical reality television landscape. UCAN provides legal support and mental health resources to past, current, and future reality television stars. [22] Hartwell and Thomson’s public backing of the organization provides a strong foundation in showing how they can relate to other reality television show participants, and gives publicity to their network. Publicity and social awareness is key in extralegal measures as public pushback can oftentimes be the best strategy for propelling networks to take action. After all, they are in the business of engaging audiences.
The possibility of unionization is another route that reality television may pursue. Bethenny Frankel has frequently spoken out on social media and to news outlets as a large supporter of the idea. [23] Delirium TV, LLC and Kinetic Content, LLC’s push to give reality television stars employee status supports this movement. This appears to be an especially fruitful route currently due to the media coverage and outroar during the WGA and SAG-AFTRA strikes. It is important to capitalize on this awareness now as it is already losing quality traction. If reality stars were able to unionize, the community force and legal rules would open up the opportunity for reality television stars to be taken more seriously by studios, rather than simply objects for entertainment. They could secure insurance benefits, higher wages, and structured work schedules. Furthermore, as a union, they would have representatives working to make sure reality television stars are aware of their rights and that studios are respecting their contractual obligations.
Reality television is often thought of as a spectacle – stars are made fun of, environments appear artificial, and situations are manufactured. It is vital to remember that the people on screens are real people, not actors. Oftentimes, this is their first experience in the entertainment world and that itself can lead to immense exploitation. While participants are ultimately almost always consenting adults under contract, there are certain situations to which people should look at under greater scrutiny. Reality television can be incredibly profitable and entertaining, but with physical and mental health issues often plaguing sets overtly and discreetly, it is time to push for greater accountability and awareness after the genre’s 25 years of popularity.
Endnotes
[1] Catherine Riley, "Signing in Glitter or Blood: Unconscionability and Reality Television Contracts," New York University Journal of Intellectual Property and Entertainment Law 3, no. 1 (Fall 2013): 110.
[2] Collier Curran, “The Grim Reality Behind Reality TV: The Legal Rights of Contestants,” The Columbia Journal of Law & the Arts, November 12, 2023, https://journals.library.columbia.edu/index.php/lawandarts/announcement/view/666.
[3] “Unconscionability,” Cornell Law School, https://www.law.cornell.edu/wex/unconscionability.
[4] Williams v. Walker-Thomas Furniture Co., 350 F.2d 445 (D.C. Cir. 1965).
[5] California Civil Code §1670.5.
[6] Riley, “Signing in Glitter or Blood?” 127.
[7] Riley, “Signing in Glitter or Blood?” 130.
[8] California Government Code § 12964.5(2)(A).
[9] Carly Thomas, “Bravo Says Reality TV Stars Can Break NDAs to Disclose ‘Unlawful Acts in the Workplace,’” The Hollywood Reporter, Aug. 25, 2023, https://www.hollywoodreporter.com/business/business-news/bravo-realitystars-break-ndas-disclose-unlawful-acts-1235575312/.
[10] Daniel Arkin, “NBCUniversal releases former staffers from confidentiality agreements about sexual harassment”, NBC News, Oct. 26, 2019, https://www.nbcnews.com/news/all/nbcuniversal-releases-former-staffersconfidentiality-agreements-about-sexual-harassment-n1072411.
[11] Julia Jacobs, “Reality TV or Court TV? Lawsuits Test Limits of Outrageous Behavior,” The New York Times, June 9, 2024, https://www.nytimes.com/2024/06/09/arts/reality-tv-lawsuits.html.
[12] Kinetic Content, LLC v. Tran Dang, No. 01-23-00444-CV (Tex. App. May. 9, 2024).
[13] Hillel Aron, “‘Love Is Blind’ cast member reaches $1.4 million settlement with Netflix in class action over unpaid wages,” Courthouse News Service, May 10, 2024, https://www.courthousenews.com/love-is-blind-cast-memberreaches-1-4-million-settlement-with-netflix-in-class-action-over-unpaid-wages/.
[14] Kate Altman, “The Real Lawsuits of Bravo: How Labor Law Could Reshape Reality TV,” University of Miami Law Review, Vol. 79, https://lawreview.law.miami.edu/the-real-lawsuits-of-bravo-how-labor-law-could-reshape-reality-tv/.
[15] Altman, “The Real Lawsuits of Bravo.”
[16] Aili Nahas and Michele Corriston, “'Bachelor Winter Games' Contestants Had Same Drinking Limits as 'Bachelor in Paradise' Cast: Source,” People, January 11, 2018, https://people.com/tv/bachelor-winter-games-drinking-limits/
[17] Delirium TV, LLC and Kinetic Content, LLC, Single and/or Joint Employers, 18-CA-322098, https://www.nlrb.gov/case/18-CA-322098.
[18] Emma Bowman, “'Love Is Blind' cast are employees, labor board says. Could a reality TV union be next?” NPR, December 17, 2024, https://www.npr.org/2024/12/17/nx-s1-5229111/love-is-blind-housewives-reality-laborunion#:~:text=In%20a%20complaint%20issued%20last,we%20see%20on%20our%20screens.
[19] Bowman, “'Love Is Blind' cast are employees.”
[20] Delirium TV, LLC and Kinetic Content, LLC, Single and/or Joint Employers.
[21] Altman, “The Real Lawsuits of Bravo.”
[22] “About Us,” The UCAN Foundation, https://theucanfoundation.org/about.
[23] Meredith Blake, “‘Housewives’ made Bethenny Frankel a star. Now she says it’s ‘nothing short of disgusting,’” Los Angeles Times, November 3, 2023, https://www.latimes.com/entertainment-arts/tv/story/2023-11-03/bethennyfrankel-union-bravo-real-housewives.