By Nikki Wilson Crary, Jackson Lewis LLP
Reports of potential NFL players being asked such questions as “Do you like girls?” have surfaced and are being criticized as apparent attempts to ascertain the individual player’s sexual orientation. These reports follow statements made by a few NFL players opining that homosexual teammates would not be welcome in the locker room. Fans often forget that the NFL Teams are employers and must comply with all federal and applicable state anti-discrimination laws.
The authorities that enforce the anti-discrimination laws have taken notice. In fact, because of the reported questions, New York Attorney General Eric Schneiderman sent a formal letter to NFL commissioner Roger Goodell pointing out that at least 20 of the League’s 32 teams are located in states that “prohibit discrimination in hiring and employment based on sexual orientation.” Moreover, under federal employment laws, while sexual orientation is not a protected category, discrimination or harassment in the workplace based on an individual’s failure to conform to stereotypical characteristics of masculinity or femininity is illegal. It’s an open question whether the assumption that a homosexual male is unable to perform in the NFL the same way as a non-homosexual male could be actionable conduct.
In response to media attention, the NFL stated on February 27, “It is league policy to neither consider nor inquire about sexual orientation in the hiring process. In addition, there are specific protections in our collective bargaining agreement with the players that prohibit discrimination against any player, including on the basis of sexual orientation.” The NFL also conducted an investigation regarding the complaints of improper questioning. According to NFL spokesman Greg Aiello, the review did not establish any “specific violations,” but the NFL “made it clear to our clubs what is acceptable when interviewing potential players and other job candidates.”
Questions regarding sexual orientation during the recruiting process could likely lead to a litigation wherein the player will allege he was not offered a contract because of his perceived sexual orientation. In order to proffer a defense, the team would have to identify the “legitimate, non-discriminatory” reason the player was not drafted. Since a number of factors play into the decision to draft a particular player, it could potentially be difficult for a team to show that sexual orientation was not considered. Regardless, the result could be a long, messy, and very expensive litigation that is entirely avoidable. Although their “office” looks a lot different from the average workplace, and the NFL Combine is not your average job interview, ultimately, NFL Teams are employers who must take care to avoid questions regarding any protected category, including homosexuality.
While the NFL’s statements regarding intolerance are encouraging, this is really the tip of the iceberg. In addition to protecting against discrimination in hiring, federal and applicable state employment laws also protect against harassment and retaliation in the workplace. So, the question remains, how will the NFL, its clubs, or any other professional league handle the situation if a current player openly declares his homosexuality? Like any other workplace, the team will have an obligation to protect its employees from harassment by coaches, teammates, and even third parties such as reporters and possibly fans. This is clearly an issue that will continue to be discussed in the media and potentially litigated in the future.
