Questions about Sexual Orientation: The Case of Manti Te'o

"Wait - what did you just ask me?"

(image credit: washingtonpost.com)

By now, we're all probably sick of hearing about Manti Te'o and the catfishing hoax that made national headlines for months. If you haven't been following the drama, Te'o supposedly had a girlfriend who died during the football season from leukemia. However, it was later found out that the girlfriend never existed, and that Te'o had never met this girlfriend, but that the relationship had taken place completely via internet and phone communications. It was revealed that the person behind the hoax, and acting as the non-existent girlfriend, was a male who later confessed his love for Te'o. Most believe that Te'o was a victim, fully duped by the hoax. However, others believe that he may have been in on the hoax, and some are even questioning his sexual orientation as a result.

For the most part, that news is all behind us. But with the NFL combine complete and draft day coming up, NFL teams will have the opportunity to focus on Te'o at the upcoming Pro Day at Notre Dame on March 26. This is the day that interested NFL teams can come to South Bend and watch Te'o perform (you could almost call it a type of  work sample test).

If NFL teams want to interview Te'o before draft day (in what would constitute a kind of selection interview), this article from Yahoo! raises an interesting point about questions regarding sexual orientation. Unlike race, age, gender, and religion, sexual orientation is not protected from discrimination under federal law. Some state laws have regulations that prohibit sexual orientation from influencing employment decisions, while other states do not. Therefore, some NFL franchises may have restrictions regarding the information they can gather regarding sexual orientation, while others may not. The article lists 19 NFL teams that theoretically could ask those questions, while 13 other teams could not.

Of course, whether or not questions regarding Te'o's sexual orientation are legal according to state law may be a moot point. Employment decisions should be based on job-related information - so information such as his slow time on the 40-yard-dash at the NFL combine would probably be more relevant. The only possible way that I can think of sexual orientation being job-related in the NFL is the fact that teams are all male, they travel together, shower and dress together, and room together on road trips. Could a gay football player create an uncomfortable (hostile?) work environment for the rest of the team? I'd say this logic is tenuous at best, and reasonable accommodation could certainly be examined in such a case. So I'm hoping that no teams are posing questions regarding sexual orientation. But the fact that some teams could potentially do so legally, while others may be more restricted is an interesting case of how different state statutes may affect the hiring process.

Reasonable Accommodation for Mental Health Issues: The Case of The Houston Rockets and Royce White

Reasonable accommodation is the legal term for an organization's responsibility to enable a qualified individual to perform their job, usually in the case of religious beliefs or disability. For example, an employer may have to avoid scheduling an employee to work on Sunday if the employee's religion prohibits such activity. Similarly, the way a workspace is designed may have to change for an employee with physical disabilities, such as a wheelchair. Other accommodations of work duties, schedules, dress codes, or other company practices may have to be made is similar situations of religious observance or disability.

An accommodation is considered reasonable as long as it does not constitute an undue hardship to the employer. What constitutes and undo hardship may depend on the situation, the expense, the size of the company, their financial situation, the type of company, etc.

With regards to religious observance and physical disabilities, reasonable accommodation are fairly straight forward and reasonably well understood. But what constitutes reasonable accommodation or undue hardship for a mental health issue such as an anxiety disorder?

image from bleacherreport.com

In one high profile example, the NBA's Houston Rockets drafted Royce White, a basketball player with admitted mental health challenges, including anxiety that could affect his ability to perform his job. For example, he is extremely afraid of flying. For a professional basketball player who is on the road for half of the season's games, that is a big hurdle to overcome.

In a video interview from USA today, White's desire to have a trained mental health professional available to diagnose his condition before games seems reasonable. And his argument equating mental health to physical health is compelling. Legislation such as the Mental Health Parity Act of 1996 and the Mental Health Parity and Addiction Equity Act of 2008 require health care plans that cover mental health to cover them in an equal manner to physical health coverage. However, these do not mandate that health care plans even cover mental health. And the 2008 law is still waiting for a final ruling from President Obama.

On the other hand, it seems that some of White's demands may be outside the bounds of reasonable accommodation. He reportedly wouldn't accept an assignment in the NBA's developmental league, which earned him a suspension without pay for breach of contract. And, as discussed by Sports Illustrated's Phil Taylor in the January 21 issue, even the request for medical decisions to be made by mental health professionals may not be doable under the the collective bargaining agreement (CBA) between the NBA and the players' union (though one of the problems may be that mental health is not adequately address in the CBA).

The Rockets have tried to make some concessions, such as paying for ground transportation to away games when feasible. But how much does an organization have to do before it falls outside the realm of reasonable accommodation? If, even after attempting some forms of accommodation, the disability (physical or mental) significantly inhibits the ability of an individual (such as White) to perform the job (consistently play basketball at an NBA level), then it could be argued that the individual is thus not qualified for the job.

Recent reports suggest that the Rockets and White may be close to a deal, and I certainly hope this is the case. I am not sure what the right answer is or where to draw the "reasonable accommodation/undue hardship" line - only that more discussion into the often-ignored subject of mental health issues in the workplace is needed. This is one high profile example, but there are probably thousands of individuals and numerous organizations trying to navigate similar situations without much of a road map to guide them.