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Friday, January 17, 2014

Vikings Football Player Speaks Up For Gay Marriage, Is Fired: Can He Sue? Maybe

Chris Kluwe is a punter for the NFL. He used to play for the Minnesota Vikings. That is, until he started speaking up in favor of marriage equality. He got permission from the team to do some ads for the cause, but things changed when he wrote and published a letter to a Maryland state official defending a Ravens football player's right to free speech on the same subject. After that, his coach asked him to stop. He didn't.

His coach began to make negative comments about gays repeatedly in Kluwe's presence that they hadn't made in all the years he had worked for them. He also made comments to the effect that Kluwe, "would wind up burning in hell with the gays, and that the only truth was Jesus Christ and the Bible"

He was singled out for harsh criticisms that others had not been subjected to. The comments got increasingly angry, such as: "We should round up all the gays, send them to an island, and then nuke it until it glows."

He was instructed to kick in such a way that it helped the team but made him look worse in the stats. Ultimately, he was replaced. His full statement about what he says happened is here. A story that has the team's response is here.  The team is now investigating and maybe they'll do something, maybe not. 

Let's assume everything he says is true. Does he have a remedy? Let's examine what possible claims he may raise:
  • Free speech: This would be a non-starter. I've written about the fact that there's no free speech at work here, here, here and here. The First Amendment protects you against government action, not corporate action.
  • Sexual orientation discrimination: Minnesota has a law against sexual orientation discrimination, but there's no law protecting speech in favor of marriage equality. If he were fired for objecting to sexual orientation discrimination within the team, then he would be protected against retaliation, but there's still no openly gay football player in the NFL. The law in Minnesota does protect against perceived sexual orientation discrimination, but I see no indication that the coach actually thought he was gay. If Minnesota has an association discrimination provision in the law, then maybe he can argue he was fired for associating with gays. My guess is he's out of luck on sexual orientation discrimination.
  • Political activity: Minnesota has a law on the books making it a crime to retaliate against an employee because of that person's political activity. I think this one may be a winner. The question will be whether he has a remedy under this law because it makes violations a misdemeanor. Any Minnesota lawyers out there want to weigh in?
  • Contract: He almost certainly has an employment contract and I know absolutely zero about football contracts. I'd guess they can dump a player pretty much at will, although there may be some hoops they have to jump through. Unless he can only be fired for cause, or the contract says he can't be fired for political activity or for discriminatory reasons, he may have little or no remedy there. Anyone know what's in his contract?
  • Religious discrimination: If his coach actually told him he'd burn in hell, this would be the way I'd probably go with it. The coach has strong religious beliefs against gay marriage and Kluwe doesn't share those religious beliefs. In Florida, with no law protecting against political activity discrimination or sexual orientation discrimination, this might be the only way to go with a case like this one. I recently wrote about whether religious discrimination laws allow harassment of employees for various reasons, which you can read here.
Can he sue? I'd say maybe. He has one possible federal claim, one pretty good state law claim and one possible state law claim. I'm guessing we haven't heard the last of Mr. Kluwe, so we'll soon find out.

I said it to conservatives and now I'll say it to liberals: it's best to keep those controversial opinions to yourself at work and in public. If you have a boss who holds strong contrary views, or if you're likely to offend your employer's customers with your opinions, keep them to yourself and your friends (but not in social media). I guess it's a good thing I'm my own boss . . .


  1. This comment has been removed by the author.

    1. Just for clarity, I deleted this one as my comments were inaccurate based on my mis-remembering how Kluwe's separation from the Vikings happened. :)


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