Musk-Backed Suit Over Disney Actor’s Firing Bets on State Law

An Elon Musk-funded lawsuit from former “The Mandalorian” actor Gina Carano filed against The Walt Disney Co. over her termination from the hit series will serve as a test case for the boundaries of California’s unusual protections for political speech.

The mixed-martial artist turned actor said in a recent Los Angeles federal court complaint that she was wrongfully fired for voicing her political views in social media posts—many of which were posted on X, formerly known as Twitter—that were deemed by some to be antisemitic and transphobic.

The actor’s suit against Disney and Lucasfilm Ltd. also claimed sex discrimination, alleging Carano’s male co-stars in the “Star Wars” series, like Pedro Pascal and Mark Hamill, weren’t punished for making political statements because they are aligned with Disney’s ideologies.

Unlike federal law, California’s Labor Code protects an employee’s right to be politically active outside of their workplace without retaliation from an employer. This additional protection, though it hasn’t been frequently tested in courts, could permit Carano’s case against Disney to move forward at a time when the company is facing conservative backlash for its diversity, equity, and inclusion practices.

“It’s a murky area, and it’s gotten much harder with social media which makes it so visible and blurs those lines in a way that when these doctrines were developed, you might be doing all kinds of things outside of work, but it was usually going to not be known to your employer,” said Deborah Widiss, an employment law professor at Indiana University’s Maurer School of Law. “Now it’s very easy for it to be known to your employer.”

California State Protections

Carano, who played Cara Dune on the show, said in her complaint filed in the US District Court for the Central District of California that she was terminated before she could star in a spinoff Disney was planning called “Rangers of the New Republic.” Being a part of the new show would’ve increased her base pay to between $150,000 and $250,000 per episode, a significant raise, she said.

But Carano was fired in February 2021, shortly after an Instagram post in which she indicated that conservative supporters of former President Donald Trump were receiving comparable treatment to Jews during the Holocaust. Disney also took issue with a number of posts where she expressed her views on Covid vaccines, gender identity, and voter fraud in the 2020 election, she said in her complaint.

Disney and Lucasfilm didn’t respond to a request for comment on Carano’s lawsuit.

The actor brought her claims of wrongful discharge, refusal to hire, and sex discrimination under California state law, rather than Title VII of the 1964 Civil Rights Act.

“The reason she didn’t file that under federal law is because there’s no protection under Title VII for political speech or political affiliation,” said Michael Elkins, a labor and employment lawyer and founder of MLE Law.

Carano cited Section 1101 of the California Labor Code, which says a worker’s right to political expression outside of work is protected, including speaking up for a candidate or cause.

She argues the termination of her employment and Disney’s refusal to hire her for other projects serves as “an implicit warning” that “the expression of views departing from liberal perspectives” wouldn’t be tolerated.

Such implicit warnings were recently addressed by a US District Court for the Eastern District of California judge, who in July allowed an NBA TV announcer to proceed with his claim under Section 1101 that he was wrongfully terminated by a media company for tweeting “All Lives Matter.”

Whether or not the announcer’s company had a specific policy forbidding this speech, the termination served as a warning to other employees that he sufficiently alleged to be a a “rule, regulation, or policy” under the California code, the judge said.

Another advantage of state law for Carano is that she isn’t subject to any damages caps that she would face under Title VII, which would only permit her the recovery of $300,000 maximum.

On the federal level, the First Amendment also doesn’t apply in such cases, as it allows employees to exercise free speech without government regulation but doesn’t protect an employee from discipline by private employers.

“Most Americans believe, ‘I have First Amendment rights,’ and then everybody gets so amazed and upset when they realize that no, First Amendment really is directed at the government,” said Merrick Rossein, an employment discrimination professor at the City University of New York School of Law. “Employers have continued to have tremendous amount of power in terms of the employer-employee relationship.”

State v. Federal Discord

Though some states’ anti-retaliation laws may encompass employees’ political statements, California is a rarity in that it has an explicit ban on discrimination based on political activity, including speech.

Roger King, senior labor and employment council at the HR Policy Association, said California’s state protections can be an “administrative nightmare” for employers.

“Trying to put together training for employees and supervisors, trying to administer discrimination laws and other regulatory requirements in California which are so far out of sync with most of the rest of the US is extremely, extremely difficult,” King said.

Grant Alexander, an employer-side attorney at Allen Matkins Leck Gamble Mallory & Natsis LLP, said that in many ways, Carano’s lawsuit will serve as a test case for a rarely litigated provision of California’s Labor Code.

While similar cases pertaining to workers’ right to wear Black Lives Matter masks and pins were brought to the National Labor Relations Board, lawsuits over a worker’s right to political speech in California have remained relatively scant.

“The issue for Ms. Carano may be that companies like Disney have policies in place that discuss use of social media,” Alexander said. “And when you use social media or other platforms or you go on TV and you espouse views or say things that could reflect poorly on the company and its reputation, the company has the right to separate you from your employment or discipline you.”

Sex Discrimination Claims

Carano claimed Disney took no disciplinary action against her Mandalorian co-stars, despite Pascal being “active on social media, often expressing his view on the Black Lives Matter movement, LGBTQ+ rights, protests for abortion rights, and the 2020 election.” Carano also pointed to a post where the “Narcos” actor compared Trump to Adolf Hitler.

“Disney is going to have several issues because of the appearance of disparate treatment between Pedro Pascal and Gina Carano for really using the same social media platform and engaging in what appears to be political speech,” Alexander said.

In addition to her claims of discrimination based on political speech, Carano’s suit included a claim of sex discrimination under California law, as she said Disney and Lucasfilms treated her “differently than her similarly situated male co-workers.”

Widiss said if Carano is able to establish that her male co-stars were in similar positions engaged in doing comparable out of work conduct, she may have a viable sex discrimination claim. However, it can be difficult to show that the difference in treatment is really due to sex and not any other factors, such as political beliefs in this case, she said.

“I don’t think it’s a male versus female issue,” said Elkins. “I think it’s a better claim, if any of them are any good, is it’s a political viewpoint versus political viewpoint issue.”