Wednesday, June 2, 2021

Applying an employment law perspective to Naomi Osaka

Tennis star Naomi Osaka recently withdrew from the French Open, citing mental health issues that specifically precluded her from participating in press events. I thought it would be a helpful lesson for employers to view this situation through an employment law lens, and specifically the Americans with Disabilities Act (ADA). 

Caveat: I doubt that a French tennis tournament is a covered employer under the U.S. ADA, I have no idea whether the players are even employees (as opposed to contractors), and presumably there are contract provisions at play here too - think of this as an educational exercise, not actual analysis of her situation. 

Can "invisible" illnesses be disabilities?

Absolutely! The ADA defines a disability to include mental impairments that substantially limit a major life activity. And, major life activities include things like sleeping, eating, concentrating, thinking, communicating, and working... things that can be substantially limited due to severe mental illness. Here, we really don't know the extent of her mental health issues - but they could very well rise to the level of a disability under the ADA.

Would her employer have a duty to accommodate her? 
This question highlights one of the employee's obligations - an employee generally has an obligation to provide the employer with notice that they have limitations that prevent them from fully performing their job, and then participating in the interactive process (i.e. talking to the employer to help identify reasonable accommodations). This may be a problem in Osaka's situation, because it appears she just announced on social media that she was not participating in press conferences (recognizing that talks may well have taken place behind the scenes). After notice, the employer also picks up an obligation to participate in the interactive process. 

Would missing the press conferences be a reasonable accommodation?

Assuming Osaka's mental health issues rise to the level of a disability, and that she notified the tournament of her need for an accommodation, would they have a duty to accommodate her? Under the ADA an employer would be required to provide her with a reasonable accommodation that enables her to perform the essential functions of her job. 

Here's where I think a lot of the commentary on this issue is missing the mark. Professional athletes are not just playing sports - they are professional entertainers. Yes, playing the tennis matches is obviously an essential function. But, many commentators have been far too dismissive of the argument that the press conferences are also an essential function of the job. Without more information, I cannot conclude that the press conferences are definitely an essential function - but I find it plausible that press conferences are an essential part of what is ultimately an entertainment endeavor. 

Bottom line

Subject to a lot of "ifs":
  • IF her mental health issues rise to the level of a disability;
  • IF the employer had notice of the need for an accommodation and she engaged in the interactive process; and
  • IF she could miss the press conferences and still perform the essential functions of her job (i.e. the press conferences are not an essential function of the job); 
  • THEN she may be entitled to an accommodation under the ADA - like playing in the tournament but without participating in the press conferences. 

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