This week Gina Carano filed a lawsuit against The Walt Disney Company for terminating her as a cast member in the popular ‘The Mandalorian’ series.  Carano played Cara Dune in the series and was terminated for expressing conservative views on social media and is garnering a lot of attention based on the allegations and the fact that Elon Musk is paying for her legal team to bring this lawsuit.  The lawsuit highlights the interplay between California employees’ rights outside of the workplace with an employer’s right to terminate employees for views that differ politically.  California grants employees many rights, especially when they are involved in political activities away from the workplace and during their own time.  However, employers generally have the right to terminate employees under the at-will doctrine for any reason, as long as it is not for an illegal reason.  Carano’s lawsuit highlights how these rights can conflict under California law, and will be an interesting case to follow. 

In the complaint, Carano alleges that, “In announcing Carano’s termination, Lucasfilm made the following public statement: ‘Gina Carano is not currently employed by Lucasfilm and there are no plans for her to be in the future. Nevertheless, her social media posts denigrating people based on their cultural and religious identities are abhorrent and unacceptable.’”  The complaint continues, “Defendants’ statement characterizing Carano’s social media posts as ‘denigrating people based on their cultural and religious identities’ was false. It was also made with knowledge of its falsity, with the purpose of harming Carano, and to distract from Defendants’ illegal termination and treatment of Carano.”

The complaint quotes former CEO Bob Chapek, saying that Carano was fired “because she didn’t align with Company values.’ In doing so, Chapek said those company values are ‘values that are universal: values of respect, values of decency, values of integrity, and values of inclusion.” 

Carano alleges she was terminated from her role in ‘The Mandalorian,’ and that Disney cancelled production of ‘Ranger of the New Republic,’ even though she had previously been told the role was hers. 

Carano’s complaint alleges three causes of action: (1) Wrongful discharge in violation of Labor Code section 1101; (2) wrongful discharge and refusal to hire in violation of Labor Code section 98.6; and sex discrimination in violation of California Government Code section 12940.

The lawsuit raises interesting issues about an employer’s ability to terminate an employee over their expression of political views:

1. Employers cannot prevent an employee from engaging in political activity or affiliations of the employee’s choice.

As alleged in Carano’s complaint, Labor Code Sections 1101 and 1102 prohibit employers from controlling employee’s political activities.  For example, section 1101 prohibits employers from “[c]ontrolling or directing, or tending to control or direct the political activities or affiliations of employees.”  Section 1102 provides that, “No employer shall coerce or influence or attempt to coerce or influence his employees through or by means of threat of discharge or loss of employment to adopt or follow or refrain from adopting or following any particular course or line of political action or political activity.” 

2. Employers may not refuse to hire, or demote, suspend, or discharge an employee for engaging in lawful conduct occurring during nonworking hours away from the employer’s premises.

Carano’s lawsuit also alleges Disney violated Labor Code section 98.6, which makes it illegal for any employer to “discriminate, retaliate, or take any adverse action against any employee .. because the employee… engaged in any conduct delineated in this chapter, including the conduct described in subdivision (k) of Section 96….”  Carano’s complaint alleges that she was terminated and refused to hire because of her social media posts expressing conservative views, and this prevented her from engaging in or participating in politics. 

3. Carano’s sex discrimination claim is based on how Disney has treated male counterparts differently. 

Carano’s complaint also alleges violation of Government Code section 12940 for sex discrimination.  This section prohibits employers from discriminating against any employee based upon their sex, among other protected categories.  Carano’s complaint sets forth a variety of social media posts from fellow actors in ‘The Mandalorian,’ including the star, Pedro Pascal and Mark Hamill, Luke Skywalker himself.  The complaint details posts made by Pascal comparing President Trump to Hitler, comparing the treatment of “those entering the country illegally to the concentration camps of Nazi Germany,” and the following post which was subsequently deleted by Pascal:

The complaint also alleges that Disney rehired the director of the Guardians of the Galaxy, James Gunn, in 2019 after terminating him in 2018 for making obscene social media posts about rape and sexual activity with underage boys.  Carano claims that since Disney took no action against these co-workers due to their social media posts, she is being treated differently based on her sex. 

4. The First Amendment does not apply in this case because Disney is not a governmental agency.

This often raises the issue, don’t employees have a First Amendment right to speak their views and shouldn’t the First Amendment protect this activity?  Case law is clear that the First Amendment does not prohibit “a private corporation or person who seeks to abridge the free expression of others.”  For example, a newspaper publisher can fire an at-will employee “based on dissatisfaction with the content of or views expressed by the reporter’s writing.” Eisenberg v. Alameda Newspapers, Inc. (1999). 

5. California law protects other areas of employee conduct.

While these are not an issue in the Carano lawsuit against Disney, California law provides many protections for employee’s at-work and off-work conduct, including:

• Employers cannot prohibit employees from discussing or disclosing their wages, or for refusing to agree not to disclose their wages. Labor Code Sections 232(a) and (b).
• Employers cannot require that an employee refrain from disclosing information about the employer’s working conditions, or require an employee to sign an agreement that restricts the employee from discussing their working conditions. Labor Code Section 232.5.
• Employers cannot prevent employees from disclosing information to a government or law enforcement agency when the employee believes the information involves a violation of a state or federal statute or regulation, which would include laws enacted for the protection of corporate shareholders, investors, employees, and the general public. Labor Code Section 1102.5.