Over the past two days, I’ve been trying to strike the right balance when it comes to determining how many blurbs to post from the 29-page memo analyzing the results of the investigation conducted by the Vikings in response to various allegations made by former punter Chris Kluwe. It’s not nearly as delicate as the balance the Vikings have tried to strike in justifying the decision to cut Kluwe in 2013.
The management-side law firm hired by the Vikings to analyze the investigation gives the Vikings a path through the litigation mine field that could nevertheless cause an explosion or two.
“The record does not support the claim that the Vikings released Kluwe because of his activism on behalf of marriage equality, but instead because of his declining punting performance in 2012 and potentially because of the distraction caused by Kluwe’s activism, as opposed to the substance of such,” the report concludes.
On one hand, it makes sense. If a man who plays a position with low demand, high supply, and little interplay among the other 10 players on the field creates a distraction, it becomes very easy to find someone who will do the same job nearly as well without a distraction. But when the actual or perceived distraction arises from legally protected activity, it becomes difficult to separate the distraction from the activity.
Under that theory, any player whose presence creates a distraction could be released, regardless of whether the distraction comes from, for example, homosexuality, disease, disability, or membership in an obscure, unpopular, and/or controversial religious group. If Kluwe, for example, belonged to a satanic cult, that would be a distraction. And it would be hard to fire him based on the distraction caused by the religious beliefs without creating the impression that he actually was being fired because of those beliefs.
Coupled with a specious analysis of his 2012 punting skills, Kluwe’s upcoming claim for wrongful discharge could be much stronger than a legal theory based on special-teams coordinator Mike Priefer creating a hostile work environment by making homophobic remarks, especially in light of Kluwe’s admitted workplace conduct. But the question of whether Kluwe’s jokes about the Jerry Sandusky scandal show that Kluwe wasn’t offended by Priefer’s remarks won’t matter when the time comes to assess the philosophical question of whether the protected activity and the distraction arising from it are one in the same.
If they are, Kluwe easily could win in court.