Distraction or discrimination?

July 29, 2014 - by: David Kim 4 COMMENTS

Of all the people associated with the National Football League, it was Tony Dungy who got himself in some hot water with comments he made over the last couple weeks. It was the same Tony Dungy who is looked upon as thoughtful and mild-mannered and whose persona, during his tenure as an NFL head coach and now as a TV analyst, evokes a sense of calm and reasonableness (at least to the general public) amidst the brash and in-your-face personalities that dominate the 24-hour news cycle when it comes to the NFL.shutterstock_179715650

Dungy’s appeal and reputation are some of the reasons why he hasn’t been pressed by the media or the public on statements he has made in the past. Remember in 2007 when then-Indianapolis Colts Coach Dungy publicly supported the Indiana Family Institute in seeking to make gay marriage illegal in the state? Probably not. How about 2010 when he publicly criticized New York Jets coach Rex Ryan for his expletive-laced vocabulary on the HBO series Hard Knocks, and stated the commissioner should consider calling Ryan to discuss how Ryan is “representing” the NFL? Maybe, but you probably just thought that yeah, Ryan sure does curse a lot. I’m not saying Dungy deserved criticism by any means, just pointing out that he received very little whereas other public personalities likely would have had a lot more questions to answer, warranted or not.

Even Dungy, however, can’t escape the controversy surrounding statements he made about Michael Sam, who this past year became the first openly gay football player to be drafted by an NFL team. When asked by the Tampa Tribune whether he would have drafted Sam, Dungy stated no, “not because I don’t believe Michael Sam should have a chance to play, but I wouldn’t want to deal with all of it. It’s not going to be totally smooth . . . things will happen.” Because of Dungy’s 2007 support of the Indiana Family Institute (some media it seems did remember), some people took Dungy’s quote as being a repudiation of Sam’s sexuality. Particularly since Dungy had very publicly supported Michael Vick’s return to the NFL after Vick’s release from prison for dog fighting charges, making any comment regarding Sam being a distraction appeared hypocritical.

Last week, Dungy sought to clarify his remarks. He stated he was simply answering the question honestly as to whether he would have drafted Sam. He stated he wasn’t asked whether Sam deserves an opportunity to play in the NFL (answer: absolutely), whether sexual orientation should play a part in the evaluation process (it should not), or whether Dungy would have a problem with Sam on the team (he would not). He simply stated that his philosophy on drafting, which was to minimize distractions, played a role in his response–namely that while Sam’s sexual orientation won’t be a distraction to his teammates or the organization, the media attention that comes with it could be a distraction. Some say, however, that Dungy’s clarification is still insufficient–that his “distraction” rationale makes little sense in light of his very public backing of Vick’s return to the NFL, which certainly created a firestorm of media attention at the time.

Dungy is certainly entitled to his opinions and entitled to voice them if he wishes, whatever they may be (though he may not be thrilled with the public and media attention). If Dungy, though, were an active coach or general manager of one of the teams that passed on Sam in the draft, you can be sure his comments would be construed simply as “we did not draft Sam because we don’t want to deal with the ensuing media attention” [which would be because he is gay]. That could pose a problem. What if your hiring director passed on a candidate for a position and stated that it was not because of the candidate’s sexual orientation but because they were worried how much of a distraction his/her introduction into the company’s workforce would be considering he/she was openly gay or bisexual? I think you know the answer to that.

In fact, currently most states prohibit sexual orientation discrimination. On July 21, 2014, President Obama signed an Executive Order prohibiting federal contractors from discriminating against employees based on sexual orientation and gender identity. While the federal law does not explicitly protect discrimination based upon sexual orientation with respect to private employers, some courts have construed such claims as arising under Title VII’s ban on sex discrimination because an argument can be made that an employer views an employee’s sexual orientation as inconsistent with acceptable gender roles. Either way, it’s really only a question of when, not if, Title VII will be amended to specifically protect sexual orientation.

Dungy and others will have to understand that the purported distinction between distraction and discrimination is one without a difference under the law, unless there are extraordinary circumstances and facts at play. Luckily for Dungy, it’s only a matter of time before someone (a player, coach, management, owner, or media member) says or does something that becomes the new top story in the NFL. After all, training camp just started.

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1 Ava Harston
13:33:02, 06/08/14

There was a clarification that Tony Dungy’s comments were taken out of context and actually related to an interview in 2013 regarding athletes participation in reality TV shows. Not sure if the clarification is true but before you vilify someone it is worth consideration that a statement was misrepresented.

2 David Kim
09:48:10, 07/08/14

Ava, thank you very much for your comment. The clarification you are referring to is Dungy’s own personal statement released on July 22, 2014, in which he addresses his prior statements made specifically about Michael Sam. I noted some of his remarks above, including that he believed Sam absolutely deserves to play in the NFL. His statement also states that “several weeks ago” he was asked whether he would have drafted Sam and he gave an honest answer, that he would not have because of the distractions it would have brought to the team. In support, he noted that “at the time of my interview, the Oprah Winfrey reality show that was going to chronicle Michael’s first season had been announced.”

While Dungy’s July 22, 2014 clarification statement righly lauded Sam’s right and opportunity to play in the NFL, some still take issue with Dungy’s clarification. First, it was publicly announced that Oprah’s OWN network and Sam had agreed to cancel the planned reality show back on May 16, 2014, which would appear to have been before Dungy made his initial comments to the Tampa Tribute based upon his “several weeks” statement. In addition, Dungy publicly suggested that teams should take a chance on a reformed Michael Vick, after Vick’s release from prison, and while Vick was also known to be filming his own reality show/documentary that eventually aired on BET in 2010. As a result, some have noted that Dungy’s distraction rationale seems to be inconsistent.

I have no interest in vilifying Dungy, nor do I believe he deserves it or intended for his comments to be construed in the way they have. However, the reality is that his clarification, while well-intended, still left some people with questions. In addition, if Dungy were an employer, comments such as these could have consequences, fair or not. And the Vick/Sam situation is akin in employment law to comparators that employees will use to bring a claim of discrimination against their employers (i.e., that other employee was treated more favorably than me even though we are similarly situated). I think it’s evident here how one statement, which I believe was not made out of any ill intent by Dungy, can be construed and analyzed in so many different ways. And if you’re an employer, that’s not the kind of statement you want to have to deal with defending against, because even if you’re ultimately proven right, it will be a lenghtly and costly process to get there.

3 kathy
09:44:47, 08/08/14

Dungy was never asked if he would recruit Michael Vick, just that he supported him being given an opportunity to play again. He also supports Michael Sam’s opportunity to play. I would think he would not have recruited Michael Vick either due to the media frenzy that was anticipated at the time. He likes to keep things focused on football.

4 David Kim
14:40:11, 08/08/14

Kathy, that’s definitely a valid point. I did some digging out of curiosity and came up with an interview Dungy gave to NPR where he was asked if he was coaching whether he would take a chance on Vick and Dungy replied that he would. http://www.npr.org/templates/story/story.php?storyId=111782935. Thanks for keeping me on my toes!

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