Mandalorian Actress Beats Back Disney Bid to Toss Wage Lawsuit

Los Angeles, CA On July 24, the District Court for the Central District of California denied The Walt Disney Company’s motion to dismiss actress Gina Carano’s wrongful termination and sex discrimination lawsuit. Carano’s California employment lawsuit alleged that Disney had violated California law by firing her in retaliation for various social media posts that the company found objectionable. Gina Carano v. The Walt Disney Company will now, presumably, move toward trial. For legal nerds, the lawsuit raises some interesting issues about balancing the employers’ and employees’ First Amendment freedom of speech rights.

But this is Hollywood – and the business of Hollywood is drama. Lights! Camera! Cue Elon Musk!

Political views

Prior to her termination, Carano, formerly a mixed martial arts fighter, had played Cara Dune in the 'Star Wars' series. Disney and subsidiaries Lucasfilms and Huckleberry industries featured her prominently in promotional materials for the Disney+ show 'The Mandalorian'. 

According to Carano, beginning in 2020, she declined to endorse the Black Lives Matter movement or display her pronouns at the request of online followers. She also criticized certain COVID-19 policies requiring businesses and churches to remain closed while allowing public protests. Disney and its subsidiaries made Carano aware that they disapproved of her positions on several occasions. They ultimately demanded that she issue a public apology, which she declined to do. On November 5, 2020, Carano stated in a social media post that “[w]e need to clean up the election process” and called for laws “that protect us against voter fraud,” as well as for a voter identification requirement. Disney expressed dismay.

Disney publicly fired her on February 10, 2021 after she shared an Instagram post comparing criticism of politically conservative opinions to the Nazis' actions during the Holocaust. Leading liberal/progressive lights, including Lucasfilm President Kathleen Kennedy and 'Mandalorian' creator and Executive Director, Jon Favreau, were at least tangentially involved.

Carano filed her lawsuit on February 6, 2024, asserting claims for wrongful discharge under the California Labor Code and sex discrimination under the California Government Code. The latter claim arises from allegations that male cast members were not similarly disciplined.

She seeks damages to be determined at trial and a court order that she be recast on the show. Carano has said on social media that X (formerly known as Twitter) had helped fund the lawsuit. X owner Elon Musk shared her post, adding that anyone else who felt they had been wronged by the company should “let us know if you would like to join the lawsuit against Disney.”

Who owns the First Amendment?

Awkwardly, the answer is that both sides might advance free speech claims, at least under some circumstances. Political speech is among the most highly protected forms of speech under the First Amendment.

Reflecting this, under the California Labor Code “[n]o 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.”

On the other hand, the First Amendment protects not only “political and ideological speech” but speech occurring in entertainment. “[M]otion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee.”

Both sides have a plausible argument.

California labor employment law

California’s Fair Employment and Housing Act (“FEHA”) provides that “[i]t is an unlawful employment practice” for an employer to “discharge” or “discriminate against [an employee] in compensation or in terms, conditions, or privileges of employment,” based on the employee’s sex, among other characteristics.

In their defense, the Disney defendants rely heavily on the 2000 Supreme Court decision in Boy Scouts of America v. Dale, where the Supreme Court held that laws that prohibit discrimination against certain protected groups (in that case a gay Scout leader) do not prevent private organizations from expelling members based on a protected status such as sexual orientation. The Disney defendants argue that the same rule should apply to an actor who had played a significant role in the promotion of their films, but whose private social media posts ran contrary to company values.

The District Court rejected the Disney argument. It did not see that The Disney Co. or other defendants were sufficiently like the Boy Scouts to apply the same rule. It noted that Disney, et al. are for profit, money-making businesses. Unlike the Boy Scouts, they are not non-profit, voluntary organizations devoted primarily to the promotion of certain values.

Is this the end of the road?

Not likely. Both sides have very deep pockets and an interest in winning. In season one of 'The Mandalorian', Gina Carano’s character, Cara Dune blusters, “Unless you want to go another round, one of us is going to have to leave, and I was here first.”
It’s fun. It’s pure tinsel, not a legal strategy. The delicate business of balancing employee and employer rights will go on for at least another season.