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Court of Appeal:
Actor’s Suit Over Losing Role for Vaccination Status Is SLAPP
Opinion Says Discrimination Claims Against Apple Studios, Based on Allegations That Clotting Disorder Prevented Plaintiff From Taking Shot, Lacked Minimal Merit Because Fact He Was Not Inoculated Made Him ‘Unqualified’
By Kimber Cooley, associate editor
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BRENT SEXTON actor |
Div. Eight of this district’s Court of Appeal has held that a discrimination lawsuit, filed by actor Brent Sexton over losing out on a role in an Apple Studios LLC television series based solely on the performer’s being unvaccinated against COVID-19, was a SLAPP, rejecting the plaintiff’s claims that the entertainment giant failed to accommodate—though testing and other measures—his inability to take the shot based on a clotting disorder.
On March 1, 2022, Sexton was offered the part of former President Andrew Johnson in the “Manhunt” series, chronicling the assassination of then-President Abraham Lincoln, conditioned upon his vaccination against COVID-19. He requested an exemption, citing a history of blood clotting caused by thrombocytopenia and deep vein thrombosis, each of which he alleges increased his risk of harm from the inoculation.
He also noted that he had already been infected with the virus and so had some level of protection against the disease. The plaintiff offered to undergo regular testing for COVID-19 and isolate when not on set during the filming period.
In Friday’s opinion, authored by Justice John Shepard Wiley Jr. and joined in by Acting Presiding Justice Elizabeth A. Grimes and Justice Victor Viramontes, the court reversed a denial of the studio’s anti-SLAPP motion. Wiley wrote:
“During the COVID-19 pandemic, Apple Studios LLC offered Brent Sexton a film role on the condition he get vaccinated. Sexton refused vaccination and sued Apple when it withdrew its offer and cast a different actor. The trial court erroneously denied Apple’s anti-SLAPP motion….On the merits, Apple’s evidence negated Sexton’s lawsuit. Sexton had no privacy claim because Apple was entitled to rely on authoritative views about sensible ways to protect its workplace. Sexton’s discrimination claims failed because he was unqualified for the work. Safety was a job requirement Sexton could not satisfy.”
Allegations in Complaint
In his complaint, Sexton alleges:
“In early 2022, Apple offered him a role on a new Apple TV series called MANHUNT. Mr. Sexton accepted the role, which was to pay him at least $595,000 plus incentives (pension contributions and other benefits). But he has a disability that prevented him from getting the Covid-19 shot. He sought accommodation, supported by a doctor’s note regarding the disability.
“Apple rejected the request in less than 48 hours. It made no effort to accommodate Mr. Sexton’s condition. It did not even discuss the matter with him. And it refused his offer to undergo regular testing for Covid, an accommodation that has been widely accepted on film and television sets, and even at Apple’s retail stores and corporate headquarters.
“….Apple has an obligation to accommodate people who, like Mr. Sexton, could not get vaccinated but could perform the essential functions of their job. [] It has an obligation to engage in the interactive process. California law requires that.”
Sexton asserted causes of action for disability discrimination under the Fair Employment and Housing Act and a claim based on the privacy clause of the California Constitution.
Then-Los Angeles Superior Court Judge Michael P. Linfield (now retired and serving as litigation director for Dordick Law Corporation) found that Sexton had “submitted sufficient evidence to demonstrate a probability that he was qualified to do the role had he undergone daily testing for COVID-19.”
Two-Step Analysis
Wiley noted that the analysis of special motions to strike proceeds in two steps—first, the defendant must show that the claims arose from protected activity, and then the burden shifts to the plaintiff to show that his claims have at least minimal merit.
As to the first prong, Sexton argues that the challenged activity was Apple’s refusal to accommodate the actor’s health condition based on concerns over logistical issues and a possible danger to others. Apple frames the issue differently, saying the challenged activity is the casting of the role of Johnson.
Siding with the defendant, Wiley said:
“The challenged activity was not merely logistical. It was also creative.”
So framed, he opined that the activity implicated two public issues: Apple’s stand in the vaccination debate and how the entertainment studio “would portray a controversial American figure.” Spending a few pages of the opinion on the history of the controversy surrounding vaccination policies, he wrote:
“Apple took a stand: it made vaccines mandatory on this set. Apple charted a path through the minefield and staked out a rigorous position.”
As to the second public issue at stake, he remarked that “[t]he assassination of Lincoln was cataclysmic” and “Johnson proved a contradictory character,” noting the former president’s statements that he would be “Moses” to the black community while also being cast as a white supremist by some historians.
He acknowledged that precedent was “not on all fours with Apple’s casting decision,” but reasoned:
“[T]hey demonstrate the anti-SLAPP statute covers significant media decisions about who will perform important roles for a wide public audience….Casting Johnson was a significant part of retelling a transforming American disaster.”
Under these circumstances, he concluded that “Apple wins on prong one.”
Discrimination Claims
Turning to the merits of the discrimination claims, he explained:
“Sexton’s ‘primary claim’ about discrimination, according to his briefing, was for failure to accommodate his disability.
“This failure-to-accommodate claim required Sexton to show he was qualified for the position he sought.”
Noting that “[a]ccording to authoritative public health directives, vaccination was conventional wisdom at the time,” he commented:
“Sexton’s central point is that he offered to test daily and to keep a social distance when not on the set. But COVID-19 tests suffered a lag, meaning that a favorable test result nonetheless might allow a disease spreader into the workplace. Acting requires close contacts with other actors, with hair and makeup artists, and with crew on the set. Based on authoritative government guidelines, Apple reasonably believed testing was no substitute for vaccination.”
He pointed out that Sexton relied on a declaration by Sean Kaufman, a public health professional who averred that “no compelling scientific evidence showed vaccines affected the severity of illness,” but said that “Kaufman did not opine that testing was a reasonable alternative to vaccination.”
Wiley declared:
“In sum, Sexton offers no evidence that testing could be a reasonable accommodation for the position he sought. Neither can he point to a precedent approving an accommodation that would increase a potentially deadly threat to coworkers. This claim fails.”
The case is Sexton v. Apple Studios LLC, 2025 S.O.S. 878.
“Manhunt” was released on the Apple TV+ platform on March 15 of last year. It starred actor Glenn Morshower as Johnson.
Apple was represented by Emma Luevano, Stephen A. Rossi, and Rebecca Benyamin of the Century City office of Mitchell Silberberg & Knupp. Acting for Sexton were Scott J. Street, of the Pasadena office of JW Howard/Attorneys, and John W. Howard, of the firm’s San Diego location.
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