Is It Time For Labor Law To Include Political Affiliation As A Protected Class?
Former Disney employee’s lawsuit raises questions about the reach of our employers.
Earlier this month, former Disney actress Gina Carano filed a lawsuit alleging that her termination from the Star Wars franchise was not only gendered, but a retaliation for her political beliefs. Carano, who played Cara Dune in two seasons of The Mandalorian, is one of a small number of publicly outspoken conservatives, as evidenced by her social media posts. She was opposed to vaccine mandates and Covid shutdowns, believed that Joe Biden’s election in 2020 was a result of voter fraud, made some pretty dubious comparisons between Republicans in the U.S. and Jews in Germany in the 1930s, and may or may not have made a snarky comment about preferred pronouns.
All of this social media activity ultimately prompted Disney to terminate Carano in February of 2021, putting out a statement that reads:
“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.”
In the fallout, Carano’s talent agency also severed ties, as did her industry lawyer who helped negotiate Carano’s contracts. Carano’s lawyers in the suit, paid for by Elon Musk, intend through discovery to determine if those actions weren’t taken at the behest of Disney. The 59-page complaint, filed February 6, is available here, from Deadline.
Disney is likely going to argue one of two basic points: 1) that Carano wasn’t “terminated” inasmuch as she simply wasn’t renewed for future appearances in any Star Wars projects, or 2) her social media posts were a violation of Disney’s standards of conduct, and that her conduct could have a deleterious impact on the company’s reputation.
According to Carano’s camp, defense number (1) doesn’t hold water because she was already offered a leading role in an upcoming Star Wars series called Rangers of the New Republic as well as some spots in upcoming feature length Star Wars films. As for defense number (2), Disney might have a little more wiggle room in a labor dispute. As I’ve covered in the past, companies with social media policies often need only refer to the policy as evidence that employees were forewarned and most judges, as well as the National Labor Review Board (NLRB), will side with the company. In fact, most unlawful termination suits that prove victorious for the employee (either by settlement or jury trial) do so under approximately four grounds:
Violation of public policy (your employer is flouting a state or federal law and you refuse to comply)
Discrimination (based on race, gender, sexual orientation, religion, sexual identity, etc.)
Breach of contract
Retaliation for whistleblowing
Since most states have what they call “at-will” employment, companies can basically fire you without cause, so long as they don’t run afoul of those above-mentioned bullets (there are other, more-nuanced grounds, but those are the “big four”).
Which is why, it seems, that Carano’s lawyers are also alleging sex discrimination in Disney’s handling of her social media posts. According to the lawsuit, Carano is alleging that similar politically charged social media posts written by co-stars Pedro Pascal (the Mandalorian) and Mark Hamill (Luke Skywalker) were not met with the same series of consequences. The lawsuit includes screenshots of those posts, comparing Trump to Hitler and Trump followers to the KKK. Carano’s lawyers are likely leveraging the fact that Pascal and Hamill are both men in order to build a case that Carano’s treatment was a consequence of her sex, so they can fit the unlawful termination claim under the banner of “discrimination.”
But why should they have to? Why isn’t it enough to reinstate Carano at Disney on the grounds that a person shouldn’t be fired because of their outspoken participation in political discourse? Rather than twisting ourselves into legal pretzels by shoehorning the diverse ways an employee can be fired into some coincidental category, why not address the real issue at hand? Make political affiliation a protected class that can not be discriminated against, the way we have made race, sex, religion, sexual orientation and other characteristics illegal to discriminate against.
At the moment, there is no federal law protecting political speech or activity. There are some state laws that offer different protections. In California (where Carano has filed suit) section 1101 of its Labor Code states:
“No employer shall make, adopt, or enforce any rule, regulation, or policy:
(a) Forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office.
(b) Controlling or directing, or tending to control or direct the political activities or affiliations of employees.”
In California, Carano might be at the mercy of what constitutes “political activities or affiliations.” For many, this can be interpreted to merely mean a person can’t be fired for running for office, or volunteering off-hours for a political candidate during an election cycle. With that definition in mind, taunting a political opponent, or posting an edgy political meme on social media does not deserve protection from termination.
According to this pretty informative and comprehensive article by Allen Smith, California is one of about 19 states that have such language codified in their labor laws, but each of those 19 states have significantly different definitions of what constitutes “political activity.”
A blanket, federal protection of political speech and affiliation as a “protected class” would go much further in preventing future (less famous, less financially resourced) Gina Carano’s from happening.
In all likelihood, unless Disney settles (to avoid opening a can of worms during the discovery phase), Gina Carano will lose. Disney will likely fall back on its status as a private “at-will” employer, and the courts will probably not consider Carano’s Instagram and Twitter posts as “political activities or affiliations” under the state’s Labor Code. A pretty large subset of online progressives are too busy laughing at Carano’s discrimination allegations, and gleefully posting “FAFO,” to realize that a company’s motive to turn a profit while limiting PR headaches can easily cause them to interpret their social media posts as “abhorrent and unacceptable.” Any day now the tides can turn. Despite what you think of Carano’s social media musings, the outcome of this case could (and maybe should) have broader implications for all of us with interests and passions that fall outside our job descriptions.