Tuesday, March 5, 2013

Touchy Questions at the NFL Combine

An interesting issue arose at the NFL rookie workouts held in Indianapolis several weeks ago. At least one player reported that he was asked about his sexual orientation during the club interviews.

The workouts for prospective NFL players, formally referred to as the "Combine", involve a variety of physical tests of speed, agility, and strength. The players are also required to take a kind of intelligence test (the "Wonderlic" test), and participate in hour after hour of interviews by the personnel departments of the respective clubs. As the NFL has become a higher profile sport, with the commensurate rise in player compensation, clubs are paying a lot more attention to the type of people on whom they are contemplating dropping millions of dollars, and who might become the face of their franchises.  Players get asked a lot of questions about their lifestyles, brushes with the law, substance abuse, disciplinary history with their college team, personal associations, and the like that would rarely pass muster in a normal job interview.  Again, because this is the entertainment business, clubs can usually point to a bona fide business basis for these questions. Because of a particularly high profile incident with a star college player this year, questions about sexual orientation apparently rose to the fore.

Such questions are not illegal per se under federal employment law. Sexual orientation is not a protected employment category under Title VII, nor is it considered a disability under the ADA.  A number of states, including many with NFL franchises, preclude discrimination on the basis of sexual orientation, however.  The NFL and its union have specifically agreed that sexual orientation cannot be considered in making employment decisions.

Of course, simply asking the question is not illegal. But if a player was to disclose his homosexuality, a club could not use that in an employment decision without violating the collective-bargaining agreement, and perhaps a state or local ordinance. The devil in such a case is proving it.

The truth is that most of these players will be drafted, so they will be employed by somebody. My personal opinion is that it is almost impossible for a draft-eligible player to prove that homosexuality was the basis for his draft position, rather than his performance as collegiate player, his physical stature and attributes, or some obscure response during the interview. The situation gets a little bit easier for openly gay players who have been in the league for a while. It's much easier to compare their performance with other players at their position, and extrapolate from there the player's value or desirability for a particular football team, which then might be affected by a consideration of homosexuality.

Given the public nature of pro football, gender orientation is a highly inflammatory subject. Moreover, coaching staffs and players have expressed concern about the impact of openly homosexual team members on the dynamic of the club.  These are not valid considerations under the collective bargaining agreement, but they obviously factor into the thought processes of club management everywhere.  This issue will likely surface again, and perhaps before the next combine takes place in 2014.

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