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Sexual Orientation Discrimination: Michael Sam’s Legal Options
By Marcus Wilbers on March 19, 2014 at 3:48 PM

Football Line of ScrimmageBy now, if you haven’t heard the name “Michael Sam,” you’ve probably been hiding under a rock somewhere. His name was constantly in the headlines of both sports and news media after he publicly announced he is gay. And for good reason. The former Mizzou football player and SEC Defensive Player of the Year could become the first openly gay player in the NFL. As many in the media struggled to find a new angle for the story, some questioned whether Sam’s sexual orientation would hurt his chances of being a high draft pick – or a draft pick at all. Some speculated that NFL teams may pass on Sam because of the real or perceived unrest it could create among his teammates.

Suppose Michael Sam goes undrafted – or in employment law terms – suppose NFL teams refuse to hire him because he is gay. What recourse would he have? 

He could file a grievance with his Union, the NFL Players Association, for violation of the NFL’s Equal Employment Opportunity Policy and Collective Bargaining Agreement, both of which prohibit discrimination based on sexual orientation.

But legally, Sam’s options would be more limited. That’s because Title VII does not include sexual orientation as a protected class. In fact, federal courts have uniformly rejected the argument that Title VII’s prohibition against discrimination based on “sex” should be construed to include sexual orientation.

State law treatment of the issue is anything but uniform, but most follow Title VII’s example. However, twenty-one states have enacted non-discrimination laws that prevent employment discrimination based on sexual orientation. Illinois is among them; Missouri is not. The Illinois Human Rights Act expressly prohibits discrimination “because of . . . sexual orientation.” 775 ILCS 5/1-102(A). Although Missouri’s Human Rights Act does not cover sexual orientation, several bills are currently pending in the Missouri state legislature that would, if passed, amend the Human Rights Act to add sexual orientation and gender identity as protected classes.

Many municipalities around the country have enacted ordinances that prohibit discrimination based on sexual orientation. St. Louis is among them. St. Louis Ordinance 67119, Section 9 prohibits an employer from failing or refusing to hire, discharging or discriminating against a person because of sexual orientation. Ordinance 67119 does not authorize private causes of action, however, and St. Louis Ordinances only apply within the city limits.

So from a legal standpoint, some teams could legally refuse to draft and “hire” Sam because he is gay because they are not covered by state or municipal discrimination laws that cover sexual orientation. According to one account, there are five such teams: the Arizona Cardinals (Glendale, AZ), Jacksonville Jaguars, Houston Texans, Carolina Panthers (Charlotte, NC) and the Tennessee Titans (Nashville, TN). If that is accurate, Sam would have some legal measure of protection from discrimination by all other teams.

This state-by-state and city-by-city analysis could change in the near future, however. United States Senate Bill 815, also known as the Employment Non-Discrimination Act of 2013, or “ENDA,” would prohibit sexual orientation discrimination by all employers with over 15 employees (the same threshold as Title VII). ENDA passed the Senate in November 2013 and is currently pending in the House of Representatives.

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