Actor and former mixed martial artist Gina Carano’s high-profile lawsuit against the Walt Disney Co. will invoke a provision of California Labor Code that protects workers’ right to be politically active.
In a lawsuit backed by billionaire Elon Musk, Carano alleged wrongful termination and discrimination under Section 1101 of the California Labor Code. The lawsuit, filed Feb. 6 in federal court in California, said the media giant fired her from “The Mandalorian” series in 2021 over her conservative posts on social media sites, including X, formerly known as Twitter.
Social media users called out Carano’s posts as being racist, antisemitic, transphobic and supportive of claims of voter fraud in the 2020 presidential election.
“This is an area where we have sparse case law, and California is really defining political case law,” Natalie Pierce, chair of law firm Gunderson Dettmer’s employment and labor practice, told HR Dive.
Under Section 1101, employers cannot have policies “forbidding or preventing employees from engaging or participating in politics or from becoming candidates for public office” or “controlling or directing, or tending to control or direct the political activities or affiliations of employees.”
“No one really focuses on protecting political activities without employer interference, and it really is a reflection of California’s extensive employee rights,” Pierce said.
While the First Amendment does guarantee freedom of speech, it only protects individuals from government action, not from adverse action from private employers, she said.
It’s an “understandable but common misconception,” Tom Spiggle, an employment lawyer and owner of The Spiggle Law Firm, told HR Dive.
Spiggle said he thinks it’s rare for workers in states without such a law to be penalized for participation in political events.
“Employers don’t want to get into this; they’re not watching where you go,” Spiggle said. “We’ve never had somebody walk into our office, say they went to this event and were fired.”
The issue is complicated, however, when it involves an event that ends up on national television, such as the White supremacist march in Charlottesville, Virginia, in 2017, he said.
Workers do have some federal protections when it comes to politics, a guide of frequently asked questions created by law firm Fisher Phillips explains.
For example, private sector employees in union and nonunion workplaces can engage in concerted activity under the National Labor Relations Act. That can include discussions about higher wages, changes to work schedules and job security.
And federal antidiscrimination laws can be applied when workers’ discussions involve race, color, sex, sexual orientation, gender identity, national origin, religion, age or disability, per the guide.