Labor News & Commentary November 4, 2024 Disney tests a new free speech theory of defense in employment discrimination

https://onlabor.org/november-4-2024/

By Holden Hopkins

Holden Hopkins is a student at Harvard Law School.

In today’s News & Commentary, Disney tests a new free speech theory of defense in employment discrimination cases, University of California workers vote to authorize strike, and an NLRB judge rules that Starbucks illegally excluded union stores from pay cycle changes.

As Gil reported back in February, The Walt Disney Company has been facing an employment discrimination suit from actress Gina Carano who alleges that she was fired from her show “The Mandalorian” for her political views after a series of social media posts the company deemed to be antisemitic and transphobic. Now, Disney is advancing a defense to Carano’s claims—brought under a California statute which aims to protect employee political activity outside of the workplace—arguing that actions such as the termination of Carano are tied to the company’s right to control its brand message.

Michael Selmi, a law professor at Arizona State University with a focus on employment discrimination and civil rights law questioned the broader efficacy of this tactic. “I do not anticipate that employers more generally will receive any protection from claims of discrimination based on the First Amendment defense,” Selmi told Bloomberg Law. However, the interactions of this defense with the California state law at question, as well as Disney’s claim for special consideration as a fundamentally “expressive entity” could pose interesting questions of law for the court to resolve.

FULL story at link above.