Legal View: Best employment practices from the wide world of sports

Rich Meneghello, The Daily Record Newswire

Following professional sports can be a welcome diversion from everyday life. For a few hours, at least, people can forget about their responsibilities and root for their favorite team (or whichever one happens to be playing on ESPN that night) in blissful ignorance of the outside world.

Two recent off-the-court stories, however, remind us that the world of professional sports might actually teach us valuable lessons about best practices for workplaces. Business owners, managers and human resources professionals would do well to tune in to these stories.

Is it OK to ask football players about their sexual orientation?

To date, no American professional athlete competing for a major team sport has come out of the closet to reveal that he is gay. Society has grown more accepting of LGBT (lesbian, gay, bisexual, transsexual) individuals by leaps and bounds in recent years, and several high-profile athletes have stood up to criticize homophobic language and behavior. However, athletes have noted that a stigma still is associated with gays and team sports — both in the locker room and in the ranks of fans and media.

Professional team owners and managers are cognizant of the tension that exists about this issue. Perhaps worried about the disruption that a player “coming out” would cause among the team members and in the media, indications suggest that some teams are taking steps to ensure that their team is not the first to deal with an openly-gay athlete.

Recently, at the National Football League combine, where prospective players show off their talents and interview with teams in hopes of being selected in the NFL Draft, at least one team was reported to have asked players about their sexual orientation. The questions “came out of the blue,” according to one of the players. Questions began along the lines of: “Do you have a girlfriend?” and “Are you married?” But then they devolved into pointed queries such as “Do you like girls?”

Once reported in the media, the NFL quickly denounced the practice and reminded teams that they must comply with all applicable employment laws when they make selection decisions, and that sexual orientation should not be taken into account during the process.

This is a good reminder for employers not to make hiring decisions based on customers’ preferences or perceived “employee morale” factors. While these teams may have been worried about how a gay player would be received in the locker room and in the local community, they are prohibited from making hiring decisions for these reasons.

Courts have repeatedly instructed employers that they are prohibited from defending otherwise-illegal hiring tactics by blaming their customers. “I have no problem with African-Americans, but we know that our vendors won’t want to work with them” is not a valid defense. Nor can employers follow an outdated line of thinking such as: “Women have never worked on the shop floor, and if we hire one, it’s just going to disrupt harmony.”

It is up to the employer to provide a safe and professional environment for all employees, regardless of their protected class, and then hire the best possible workers based solely on skill, experience and ability.

Do professional athletes have to be accommodated under the ADA?

The National Basketball Association’s Houston Rockets took a risk when they selected Iowa State’s Royce White with the 16th overall pick in the 2012 NBA Draft. Although there was little doubt that he was an elite athlete, he admitted last year that he has a mental illness known as generalized anxiety disorder.

Because of this illness, White is deathly afraid to travel — and fly on airplanes, in particular. This would greatly hamper his ability to play in the NBA given its busy travel schedule. The condition also causes him to exhibit panic attacks and obsessive-compulsive behavior.

Before ever suiting up to play in his first NBA game, White battled with his new employer about the extent of his accommodations and who would ultimately be calling the shots. He wanted a mental health protocol to be instituted on his behalf and wanted his mental health care professional to have the final say about which accommodations would be granted to him. Like most employers, the Rockets resisted the request to place the final say on all personnel-related decisions with an outsider, leading to a conflict between the player and the team.

So far this season, White has drawn a suspension for failing to participate in team activities, rejected an assignment to a minor league affiliate, and (after finally joining the minor league team) walked out on the team for a week before returning. It has not been a smooth first year for the player or the team, and White himself has questioned whether he’ll ever play in the NBA.

In this case, the Houston Rockets appear to have done everything that they should do in order to comply with the Americans with Disabilities Act and to work with their player. Rather than pass up “hiring” a worker with known mental disabilities, the team looked at White’s skills and abilities and selected him in hopes of getting the best of the situation.

Once problems arose, team officials did not simply cast White aside and find a replacement; they worked with him and his health care provider to determine the extent of his limitations and tried to craft solutions to accommodate his condition. When the initial solution proved unhelpful, they stuck with it and adapted as necessary, coming up with several alternatives.

However, the team rightfully retained the final say in determining which accommodations to grant and which requests would be deemed unreasonable, as is an employer’s prerogative under the law. Employers never have to sign over full personnel authority to a doctor, although they would be wise to take expert advice under consideration when making hiring and accommodation
decisions.

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Rich Meneghello is the managing partner at the Portland office of Fisher & Phillips, LLP, one of the oldest and largest employment law firms in the country dedicated to representing the interests of management. He can be reached at or 503-205-8044, or followed on Twitter @pdxLaborLawyer.