Have a general question about employment law? Want to share a story? I welcome all comments and questions. I can't give legal advice here about specific situations but will be glad to discuss general issues and try to point you in the right direction. If you need legal advice, contact an employment lawyer in your state. Remember, anything you post here will be seen publicly, and I will comment publicly on it. It will not be confidential. Govern yourself accordingly. If you want to communicate with me confidentially as Donna Ballman, Florida lawyer rather than as Donna Ballman, blogger, my firm's website is here.

Friday, April 5, 2013

The NFL Wants You (Unless You're Gay)

Here's a new post by my associate, Ryan Price. I think he's spot on with this important issue. If the military survived gays in the barracks, the NFL will survive gays in the locker room.

By:  Ryan Price

Are you ready for some football?!?!  The management of several National Football League (NFL) teams hope you are, unless of course you are homosexual.   In a not so shocking news story, several NFL teams questioned draft prospects about their sexual orientation at the annual scouting combine.  This story came not long after the Manti Te’o scandal, where the star Notre Dame player’s sexual orientation came into question after it was reported he was romantically involved with a fictitious girlfriend portrayed by a male. Now, Te’o’s draft status is in question because teams are afraid of what they may have to “deal with” down the road if news comes out that Te’o is indeed gay.  Why should this ever matter in any employment setting? At least in the NFL, Mike Florio of NBC sports says, “We have to step aside from the rest of reality and walk into the unique industry that is the NFL . . . .  Teams want to know whether Manti Te'o is gay. They just want to know. They want to know because in an NFL locker room, it's a different world. It shouldn't be that way." Is it really a different world? Is it really unique? Are there not homophobic and prejudiced people in many work environments?

Earlier this year backup San Francisco 49ers cornerback Chris Culliver stated he would not welcome a gay teammate in his locker room. What would he do? Quit his high paying job as a backup? I don’t think so. In fact, unbeknownst to Culliver, he did play with a gay teammate. His teammate was outed not long after the Culliver controversy following a domestic dispute with his boyfriend. Of course there are gay players in the NFL and all other major American sports. However, most do not come out while they play, but that may be changing soon. The fact of the matter is, whether or not someone is a homosexual does not affect their job performance, unless perhaps they are faced with a hostile work environment. Hostile work environments begin and end with upper management. 

When management questions prospective employees on their sexual orientation, they are creating or endorsing such hostile environments. Most people, including Culliver, would not quit their job because their co-worker is gay.  However, employers will lose quality employees if they endorse such hostile work environments.  

The NFL released a statement following reports that teams were questioning draft prospects about their sexual orientation.  They simply stated, “teams are expected to follow applicable federal, state and local employment laws." Further, "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 league vowed that it would “look into the report [about the] scouting combine. Any team or employee that inquires about impermissible subjects or makes an employment decision based on such factors is subject to league discipline."

NFL Players Association executive director DeMaurice Smith commented, "I know that the NFL agrees that these types of questions violate the law, our CBA and player rights.”  However, to date, there have been no reports that the league has done anything about these “illegal” hiring practices. Perhaps that is because such interviewing questions are not illegal at all and these statements were simply released for PR purposes.
Are there any protections for employees or potential employees who are questioned about their sexual orientation during the hiring process or after they are hired? Unfortunately, the answer is usually no. There isn’t any federal law protecting employees against sexual orientation discrimination. In our country, it is mostly legal to discriminate and harass on the basis of sexual orientation. (Note: EEOC says that discrimination based on gender identity is illegal sex discrimination, but it remains to be seen whether the courts will see it that way.)

The tide is slowly changing.  More and more states, counties, and municipalities are passing laws against these heinous practices. Sexual orientation is irrelevant in the determination of a person’s qualifications for a job. In addition, these companies are sabotaging their own competitive position by filtering out homosexuals. By discriminating against employees based on their sexual orientation, companies are losing out on quality employees and also hurting their brand and image. Companies should hire the best of the best, not the best of the straight.

If you feel you have been discriminated against or harassed based on your sexual orientation you should check your state and local laws to find out what protections and redress you may have. Make sure to save copies of all applications and take notes following your interviews where you believe inappropriate questions were asked.  When in doubt, contact your local employee-side employment law attorney.


  1. Replies
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I appreciate your comments and general questions but this isn't the place to ask confidential legal questions. If you need an employee-side employment lawyer, try http://exchange.nela.org/findalawyer to locate one in your state.