Shuffle Along Down to the Courthouse: Broadway Producers Argue Actor’s Pregnancy is an Accident Worth $14 Million
The Broadway production of Shuffle Along, or the Making of the Musical Sensation of 1921 and All That Followed, opened on April 28, 2016.[1] Following the story of one of the first all-black musicals, the cast was led by Audra McDonald, the record-breaking six-time Tony Award winner.[2] Because of McDonald’s gravitas in the theatre community, the producers bought two insurance policies from Lloyd’s Underwriters in case McDonald was ever unable to perform.[3] The first was a Non-Appearance Policy, entitling the producers to compensation if a performance was cancelled because McDonald could not appear due to “Death, Accident, or Illness.”[4] The second policy was an Abandonment Policy, which would kick in if the entire production was abandoned for the same reasons.[5] Together, the two policies totaled $14.1 million in coverage.[6]
McDonald was originally set to perform in Shuffle Along for 52 weeks.[7] Four days before opening night, however, McDonald told producers that, to her surprise, she was pregnant.[8] She announced her pregnancy publicly on Twitter a few weeks later, exclaiming “Who knew that tap dancing during perimenopause could lead 2 pregnancy? @thewillswenson & I are completely surprised but elated 2 b expecting.”[9]
McDonald continued to perform as often as possible, but her doctors ordered her to stop after July 25, 2016.[10] Initially, the producers cast a replacement until McDonald could return, but days later, changed their mind.[11] They announced, instead, that the show would close, claiming that ticket sales would suffer too greatly without McDonald.[12] Even though McDonald was undoubtedly a draw at the box office, the cast also included well-known Broadway veterans Brian Stokes Mitchell, Billy Porter, Brandon Victor Dixon, and Joshua Henry—who together have a combined eight Tony Award nominations with four wins between them.[13] The Broadway community was shocked; surely, the production could have continued without McDonald.[14]
An even bigger shock came when the producers attempted to cash-in on their insurance policies. They claimed McDonald’s unplanned pregnancy was an “accident,” and that it constituted an illness, as stipulated by both policies.[15] Lloyd’s refused to pay, claiming that her pregnancy was not an accident or illness, adding that the show could have continued without her.[16]
A lawsuit seeking damages for breach of contract followed. Mounting a Broadway production is undoubtedly an expensive undertaking.[17] However, while attempting to mitigate any financial losses is perfectly within a producer’s right, blaming a female performer for being pregnant to do so is inappropriate for both legal and public policy reasons. In New York, accident and health insurance protects against death, personal injury by accident, sickness, ailment, or bodily injury.[18] Black’s Law Dictionary defines “accident” as “an unintended and unforeseen injurious occurrence . . . [such] as a collision, spill, fall, or the like.”[19] While McDonald’s pregnancy was unintended—she and her husband were not actively trying to become pregnant—it cannot be considered an injurious occurrence caused by a collision or fall. A woman’s body changes during pregnancy, but those changes are not analogous to injuries.[20] Because the catch-all of “or the like” in the definition suggests an incident must be caused by a similar mishap resulting in bodily harm to be considered an accident—thank you, ejusdem generis—the definition does not extend to pregnancy. Furthermore, New York Courts have explicitly stated that pregnancy is not an illness.[21] Therefore, pregnancy falls outside the scope of the insurance policies and Lloyd’s should not have to pay.
While the New York Supreme Court should be wary of potential floodgate effects, it is within the realm of possibility that the pregnancy could be considered an accident. When looking at the totality of the circumstances, the pregnancy was unintended and unforeseen when McDonald was cast. If this is what the court holds, the damages should only amount to $2.1 million, the maximum limit of liability for the Non-Appearance Policy.[22] The $12 million Abandonment Policy should remain untouched. Instead of immediately abandoning the production, the producers could have hired additional replacements or employed different marketing tactics, among other options. The show had been named a Critic’s Pick by the New York Times[23] and played at 101.25% capacity in its final week.[24] There is no exact formula to ensuring a production’s success, but these factors were positive indications that Shuffle Along could have had a bright future. In addition, McDonald was set to return after having the baby, so the producers were not losing her entirely. As a result, the producers should not be rewarded for making a decision that was likely motivated by the hope of capitalizing on the larger of the two policies.
Even though McDonald was 45 years old at the time, pregnancy is not an uncommon event. In their press release, the producers said they were closing the show because her “unexpected hiatus” would cause the show to run at a loss.[25] It is hypocritical for the producers to use McDonald’s pregnancy as a scapegoat and then attempt to take advantage of it for monetary gains. The Broadway community would have been more understanding had the producers rationalized the decision by saying the show had become too expensive or that it was bad timing—after all, the Hamilton sensation had erupted on Broadway that same season.[26] But instead, they blamed her gender.
This puts immense pressure on female performers moving forward. They will have to weigh the decision to start or grow a family against the burden of possibly negatively impacting their career and their castmates. Almost all Broadway performers are union members. However, union agreements currently only include provisions for disability; there is no established standard for maternity leave.[27] Although establishing one would be difficult because the industry operates on an atypical schedule and involves—for better or worse —performers’ bodies, efforts need to be made to at least discuss how to start including maternity—and paternity—leave clauses in actor contracts.
To top it all off, the entire cast and crew were put out of work when they had originally been promised at least a year of employment. Many of the cast members are stars in their own right, evidenced by the fact that five of them were billed above the title,[28] a perk typically reserved for the big names.[29] It is particularly ironic that the story of Shuffle Along follows Black actors in 1921 navigating an entertainment industry dominated by white men.[30] In the century since, how much has really changed?
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