Last week, Star Wars actor Gina Carano’s lawsuit for wrongful termination and discrimination against Disney was filed. Prior to her Forceful termination in 2021, Carano played Cara Dune in The Mandalorian show on Disney+. The lawsuit itself will play out in California federal court and is based on California employment laws, which differ greatly from South Carolina laws. But how would her lawsuit play out if she had filed it in South Carolina, subject to South Carolina employment laws? I’m so glad you asked!
What Are the Legal Claims in Gina Carano’s Lawsuit?
First things first: Carano’s legal claims are essentially two allegations: (1) that she was fired for making (conservative/rightwing) political statements on social media; and (2) her male co-stars made (liberal/leftwing) political statements of their own on social media without being terminated. Carano had posted statements related to several hot-button topics, including COVID lockdowns and choice of pronouns for transgender people, statements that created controversy and pushback on the social media platforms she used. Based on that pushback, Disney initiated certain steps to address the controversy, including asking Carano to take media training and meet with LGBTQ+ groups. Carano refused. Disney eventually terminated her employment and cancelled further development of a show that would have featured her character.
Carano alleges in her lawsuit that her male co-stars, including Pedro Pascal and Mark Hamill, engaged in social media posts of a political nature without repercussions from Disney, including comparisons of Donald Trump with Hitler.
So, those are the allegations. What are her specific legal claims based on? Well, California’s Labor Code Section 1101 provides the basis for her first statutory claim. Under that section, no California employer shall prevent employees from engaging in politics or control/direct the political activities of employees. Carano has alleged that her termination was substantially motivated by Disney’s disagreement with her political beliefs. She’s claiming lost wages, lost business opportunities, emotional distress, punitive damages, and attorney’s fees.
Her second legal claim is sexual discrimination under California law. Essentially, she’s alleging that other male Star Wars actors have engaged in political activism and commentary on social media, but that they have not been disciplined or terminated because of their actions. We call this type of claim “disparate treatment,” the idea that two employees who engaged in similar conduct are disciplined differently based on similar acts, and the only difference is the disciplined/terminated employee’s age, race, sex, disability, religion, or national origin.
What South Carolina Laws Would Apply to Gina Carano’s Lawsuit?
If Gina Carano’s lawsuit had been brought in South Carolina (where she might find sympathy with SC’s own Rebel history), what South Carolina laws might apply?
South Carolina has its own political rights statute that applies to employment. (Back in 2020, I wrote about the rights of public/government employees vs. private employees when it comes to expressions of free speech on social media, and I discussed this political rights statute there.) In South Carolina Code Section 16-17-560, an employee can bring a lawsuit against an employer if the employee is terminated because of the employee’s political opinions or the exercise of political rights and privileges. Carano could bring her political rights claim under this statute, although in South Carolina, this law is less well-developed and less commonly used than in California. She’s a private employee, so there are no First Amendment claims, which only apply to governmental employees.
For the sexual discrimination claim, she could proceed under the federal Title VII of the Civil Rights Act. South Carolina has its own Human Affairs Act, which generally mirrors Title VII, although in practice, most discrimination claims are brought under Title VII. First, she would have to file a charge of discrimination with the Equal Employment Opportunity Commission. She cannot skip this step. She must do this first. This is the Way.
If she can prove that she engaged in similar conduct to that of her male co-stars, and that she was terminated and they were not, then Title VII would provide her with a variety of damages, including lost income, emotional distress, and attorney’s fees. I assume Disney will seek to differentiate between her comments on Twitter and those of her co-stars, arguing that she was maliciously targeting a certain group, such as transgender people, in her comments. In South Carolina, I feel like this might be the stronger claim for Carano. As for who ultimately has the high ground, well, that’s up to the jury.
Takeaways for South Carolina Employees for Wrongful Termination Claims
For South Carolina employees, especially employees of private companies, it’s important to remember that there are no First Amendment protections for things you say on Facebook or other social media. South Carolina law, while offering some protection under the Political Rights Statute, does not afford much protection for speech made outside of work, nor inside of work for that matter.
However, under Title VII, South Carolina employees are just as much protected against disparate treatment as California employees are. Treating a female employee differently than a male employee for the same or similar conduct is wrong and violates federal law.
If you have been terminated wrongfully, then you should speak with a South Carolina employment lawyer immediately about your potential legal claims. And that, my dear readers, is NOT a trap.
