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Anne Wallace, Esq.

About

Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

So asks the back cover of Don DeLillo’s beautiful and disturbing 1973 novel, End Zone. In the tenor of the times, this strange, dark story dealt with American dystopia and the threat of nuclear war. Today, even without the threat of nuclear war, football and religion are as entangled as ever.

On Monday night, Kansas City Chiefs’ safety Husain Abdullah received a 15-yard unsportsmanlike conduct penalty after dropping to his knees and bowing in prayer after a 39-yard interception return for a touchdown.

According to NFL Rule 12, Section 3, Article 1 (d), "Players are prohibited from engaging in any celebrations or demonstrations while on the ground." Technically, the penalty seems justified, but the twitterverse exploded.  “What about Tim Tebow?” everyone asks.

Religious Discrimination in Employment

Title VII of the Civil Rights Act of 1964 makes it an unlawful employment practice for an employer to discriminate against anyone with respect to compensation, terms, conditions, or privileges of employment because of that person’s religion.

Further, employers are required to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would put more than a minimal burden on the employer's business operations. An employer may be required to make reasonable adjustments to the work environment to allow an employee to practice his or her religion. The accommodations, themselves, must be offered on a nondiscriminatory basis.

Legal Twist and Turns

It might be possible to argue that the rules about how football is played are not terms and conditions of employment. The rules about how tennis is played, for example, are not subject to judicial review. Abdullah’s job is to play football. Unlike Ray Rice, he can still do that, and he still gets paid. The penalty did not take him off the schedule. It was just a detriment to the Chiefs in their game with the New England Patriots, which they won anyway.

However, the reason for the penalty, “unsportsmanlike conduct,” is an implicit criticism of the way that Abdullah does his job. It’s akin to telling a worker in the course of an annual review that he would be a much better employee if he did not pray in the office. That would be pretty clearly over the legal line.

It might also be possible to draw a distinction between required religious observances and ones that are volunteered.  Abdullah also fasts during Ramadan, a required observance. It would have been very difficult for the Chiefs to justify requiring Abdullah, as a condition of his employment, to eat during the day in order to maintain his strength.

It is a closer call with spontaneous expressions of joy. Employers can probably ask cube dwellers not to leap and shout, “Thank you Jesus,” on retrieving lost files. It startles the coworkers. Rule 12, Section 3, Article 1 (d) seems to try to get to that issue.

Tebowing as Precedent

The real problem, however, is Tim Tebow.  Far from getting a flag, he became something of a darling of Christian conservatives for mid-game displays of piety. From a legal perspective, that is also probably the right result.

The NFL and the team accommodated his religious practice, even though against NFL rules, because it did not impose much of a burden on the business of playing football.

Reasonable accommodations also have to be offered on a nondiscriminatory basis. With respect to Husain Abdullah, they don’t appear to have been. That is why the NFL backed down and admitted by Tuesday, the day after the game, that the penalty had been a mistake.

Does the NFL Have Enough Problems Yet?

Let us take stock. So far, we have dog fighting, hitting women, hitting children, and a number of employment law problems. The latter include violations of minimum wage laws with respect to cheerleaders, allegations of discrimination on the basis of sexual orientation and now religious discrimination.

Is God a football fan?  Don DeLillo suggests that it is a possibility in Texas. I won't speculate. If so, within my own cultural/religious tradition, that would be called loving the sinner but hating the sin.

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