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Friday, February 23, 2007
Could a Gay NBA Player Sue for Hostile Work Environment?

A couple of days ago, Henry Abbot of True Hoop asked me to assume, for the sake of argument, that a handful of NBA players were gay and that many NBA players were anti-gay, and then examine whether the NBA, its teams, and/or executives could be vulnerable to a hostile work environment lawsuit. I opined that such a claim would be hard to prove based on what we know, and I explain why on True Hoop.

Also be sure to check out Howard's related posts on Sports Law Blog from earlier this week (2/21; 2/17).

Update on The Relevance of Title VII and Personal Jurisdiction: My good friend Paul Secunda, who blogs on Workplace Prof Blog and who is a labor and employment law professor at the University of Mississippi School of Law, e-mails me an important point that makes this type of claim even less likely: since sexual orientation is not a prohibited classification under Title VII, a gay NBA player bringing such a claim would very likely have to be employed by a team that plays its home games in one of the states or municipalities where sexual orientation discrimination is recognized--and since most states and municipalities do not recognize it, many NBA players could not bring a claim. But I asked Paul whether a player who does not play for such a team could make a personal jurisdiction argument based on the premise that all NBA teams--which are all part of joint venture called the NBA--avail themselves of the forums they travel to by playing games there, meaning a team traveling to the state of Washington (where sexual orientation is recognized) to play the Supersonics avails itself of that forum, but he does not believe that such an argument would work:
I think the answer would be the same as when you have a business traveler who spend much of the time on the road. You can engage in harassment or discrimination on the road, but the law that would apply to such situations is where the employer is located.
Thanks to Paul for this comment.


Maybe the question should be turned around: Can the non-homosexual NBA players bring an action, claiming hostile work environment (or, for that matter, can a majority group bring action on a similar basis against its non-majority group?)?

If something goes one way, it sure should apply the other. (For example, somewhat off-topic [but relating to the comment]: Imagine if NCAA schools had to have teams that represent the racial mix of the school on their athletic teams--in effect the reverse of the "there's not enough black head coaches" argument in D-IA football and basketball. If the argument applies one way [not enough coaches of a race], it sure should apply the other [not enough players of a race compared to the school's racial makeup].).

Anonymous Anonymous -- 2/26/2007 12:51 AM  

Note that, strictly speaking, this is not a question of personal jurisdiction (that is, where the defendant may be sued), which does look to availing oneself of a forum. It is a question of choice of law (that is, the law that will be applied), which looks to the situs of the events at issue. The relevant "event" for the claim is the employer's hostile environment, the situs of which is the home-base locale of the employer, even if the employer sends people on the road as part of the job.

Note that it might be different if one employee could sue a co-employee for sexual orientation harassment (as opposed to suing on the employer). Then, if the acts took place in Washington, Washington law might control.

Blogger Howard Wasserman -- 2/26/2007 1:30 PM  

I doubt it. Look at the perks they enjoy. getting to shower naked with other men after every practice & game... Maybe it's the 'straight' players that should file suit against the gays...

Blogger BLAZER PROPHET -- 2/26/2007 6:12 PM  

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