Clearing the Hurdle of Sexual Orientation and Gender Identity Discrimination in Sports

by Ogletree, Deakins, Nash, Smoak & Stewart, P.C.
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He is a latter-day Jackie Robinson—he just happens to break down social barriers without a bat and glove.

In the May 6 issue of Sports Illustrated magazine, veteran NBA center Jason Collins announced to the world that he is gay and became the first openly gay male athlete currently playing a professional sport. Collins’ announcement has garnered widespread support from the NBA, its players, and professional athletes around the world. More importantly, the announcement forces league and team management to reckon with an entirely new workplace dynamic.

Jason Collins has played for franchises in three of the 16 states that prohibit workplace discrimination based on sexual orientation and gender identity: the Nets (in New Jersey); the Timberwolves (Minnesota); and the Boston Celtics (Massachusetts). Collins spent this past season with the Wizards in Washington, D.C., where sexual orientation and gender identity discrimination are similarly prohibited. Employers must be mindful of the laws operating in the jurisdictions in which they do business. If an employer elects to implement policies that are broader in scope than what the law requires, it might invite breach of contract claims from employees alleging that policies were not faithfully followed.

In the wake of Collins’ announcement, employers would be wise to take note of the Employment Non-Discrimination Act (EDNA). The latest version of EDNA was reintroduced in the U.S. House of Representatives on April 25of this year. The law would add sexual orientation and gender identity to the list of protected characteristics of individual employees working for non-religious organizations that employ 15 or more workers. EDNA persists in Congress after nearly two decades of gridlock, but as media coverage of gay marriage intensifies and as the number of openly gay professional athletes grows, EDNA may gain the necessary momentum it needs to reach the oval office.

League and team management must now work together to develop training programs that encourage LGBT awareness. Players, coaches, and support staff all stand to benefit from increased exposure to diverse viewpoints on gender identity and self-expression—as would any “traditional” workplace. The focus of these programs should be inclusion: a how-to on preventing individual humiliation at the practice facility, on the playing field, and, most notably, in the press. After all, it’s about wins, points, and touchdowns—not the players’ personal affinities.

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