A little known fact is that I am a bit of a sports junkie.  The NHL (Leafs) and the NFL (Pats) get most of my attention but I can watch pretty much any sporting event and become excited about it.  Often, however, there is more excitement off the playing surface then on it. These blogs are a great opportunity to look more closely at legal issues in the world of sports.

The NFL has received lots of attention this year for a variety of legal issues involving disciplining employees. One issue that has not received as much attention is the discipline imposed on Marshawn Lynch of the Seattle Seahawks.

Mr. Lynch was fined $100,000 this year for refusing to speak to the media. The NFL mandates that players be available to the media during certain periods of time including following games. Mr. Lynch has chosen not to abide by this policy and been fined for it.

Now, I do not know Marshawn Lynch at all. I have certainly read that he is extremely shy and simply does not enjoy the media spot light. If his reticence is about something more, perhaps a social anxiety disorder, this could be a situation where the NFL’s requirement that players speak to the media is discriminatory against Mr. Lynch.

The Ontario Human Rights Code protects against discrimination that is direct or constructive. Direct discrimination is easy to spot. It is a rule or requirement that specifically provides for differential treatment on the basis of one of the Code’s protected grounds.

Constructive discrimination is a little more difficult to spot. It would be a requirement that does not directly differentiate people on the basis of a protected ground but results in unequal treatment of a group on the basis of a protected ground.

The requirement that all players speak to the media would likely be held to be constructive discrimination against a player that has a social anxiety disorder. The NFL would then have an obligation to accommodate that player (at least if the NFL operated in Canada).

There would be a number of options for how the NFL could accommodate a player with a social anxiety disorder. They could allow him to answer media questions by email. They could provide that he is only obligated to speak to one member of the media at a time. They could allow him to speak to the media over the telephone.  The obligation to accommodate is to the point of undue hardship. The NFL, as a billion dollar industry, would likely have a difficult time making a case that any of these options present an undue hardship to the league.

It is also important to note that in Ontario, the duty to accommodate is triggered when the employer suspects the employee may have a disability. This was the case in Krieger v. Toronto Police Services Board, a 2010 decision of the Human Rights Tribunal where the police board’s discipline of an employee for behaviour that was symptomatic of his PTSD was deemed to be discrimination.  Of significance in this case is that the employer had not been given notice of a mental illness and the employee himself was not fully aware of his illness at the time of his actions and subsequent discipline. However, the Tribunal held that the employer had a duty to accommodate even before the employee provided notice of his disability.

So, if there is reason to believe that Mr. Lynch’s refusal to speak to the media is something more than being shy, the league would have a duty to at least inquire as to the need for accommodations. With the league already facing scrutiny regarding the effects of the game on the mental health of its players, accommodating players with mental illnesses would be a step in the right direction towards a healthier workplace.