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Could Michael Sam Have a Discrimination Claim Against His Future Team?

Missouri defensive end Michael Sam is hoping to be drafted into the NFL in May. Last week, three months before he plans on turning pro, he told ESPN and the New York Times that he's gay. Several teams and coaches said his sexual orientation won't affect his draft status. But what if after he joins an NFL team, a few players begin to harass him, making it difficult for him to fit in with the team. Despite stellar performance on the field, he continues to be harassed in the locker room and at social occasions with his teammates. The team owners, stating that he has become a "distraction", fire him. Will he have a discrimination claim?.

Maybe, depending on which team he plays for. There is no federal statute prohibiting private sector sexual orientation discrimination in the workplace (although there is such a bill pending in Congress which has gotten nowhere as of yet). The situation is better on the state level, where almost half of the U.S. states have active laws that prohibit sexual orientation discrimination in both private and public workplaces, New York and New Jersey among them. In addition, if Michael joins the New York Jets, he could sue under the New York City Human Rights Law.

Assuming he is in a favorable jurisdiction, Michael would have to prove that he is being fired because of his sexual orientation, and not because of other reasons, such as poor performance on the field or even inappropriate behavior in his personal life. He might also be successful with a sexual harassment claim, depending what is going on in the locker room, and maybe even a defamation claim, if the team exploits the news media to support its decision to fire him.

What about a workplace bullying claim? If the bullying is connected to his sexual orientation, he may have a claim, but that can be very hard to prove, especially in the context of a professional football team (aren't they paid to be bullies?) A bill was introduced in New York last year (the Healthy Workplace Bill) which would hold an employer and a bully as equally liable, but it has not yet become law.

Let's hope that Michael Sam gets drafted by an NFL team and has a successful career. By doing so, he will raise the bar for the sport, much as Jackie Robinson did for baseball 60 years ago. For those of you not in such a high profile position, be aware that the laws here in New York protect you from discrimination based on your sexual orientation.

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