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NFL team's question about prospect's sexual orientation raises legal concerns


The NFL team that asked former LSU running back Derrius Guice about his sexual orientation at the scouting combine may have violated federal law, labor attorneys told USA TODAY Sports on Thursday. 

The U.S. Court of Appeals for the 7th Circuit ruled last April that discrimination in the workplace based on sexual orientation violates Title VII of the Civil Rights Act of 1964. Indianapolis-based attorney Sandra Blevins said whichever NFL team asked that question of Guice at the combine would have run afoul of the law.

“If he was applying for a job -- and that’s basically what he was doing at the combine -- and a potential employer asked such a question, the law would apply,” said Blevins, who specializes in individual rights. “It wouldn’t matter if they were asking him that question for purposes of getting a rise out of him. How do we know what the motivation was? It’s really amazing anyone is still asking these questions. It also doesn’t matter what his response was, because there are no good answers.”

Ida Castro, the former head of the Equal Employment Opportunity Commission, told USA TODAY Sports that such a question could draw the attention of the EEOC, the federal agency tasked with enforcing the Civil Rights Act.

“It depends on the facts of the case and what was done internally once the question became known (to executives),” Castro said when asked whether the EEOC could potentially launch an investigation.

“I know a lot of people will say it’s just locker room talk, and we’ve heard the president mention locker room talk. But the working environment among players should not be one where LGBTQ individuals or people from a particular race or ethnicity need be denigrated.”

NFL spokesperson Brian McCarthy said in an email to USA TODAY Sports on Thursday that the question about Guice’s sexual orientation was “completely inappropriate and wholly contrary to league workplace policies” and that the NFL is “looking into the matter.”

Guice was also asked by another team if his mom was a prostitute, one of many questions asked over the years in an attempt to get a reaction from NFL prospects. 

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“If you want to shock somebody, talk about his game,” said Castro, who is the chief diversity officer and a vice president at Pennsylvania’s Commonwealth Medical College. “I would think the worst thing you can tell a football player is that his game is lousy. If you want to test his mettle, you can do it without creating an environment where you are demeaning somebody based on race, ethnicity or orientation.

"I think they’re walking a very fine line here with federal law.”

Blevins said Guice could show harm if the team – which has not yet been identified – didn’t draft him, lowering his earning potential. 

“How would they ever be able to prove they didn’t draft him because of how he answered that question?” Blevins said. “Questions like this just create liability for the teams. It creates an issue that wouldn’t be there if they didn’t ask."

Whether Title VII of the Civil Rights Act prohibits workplace discrimination due to sexual orientation has been litigated for years in states that lack LGBTQ employment laws. The fact that the 7th Circuit covers Indiana, site of the combine that concluded earlier this week, is key.

William Gould, professor emeritus at Stanford Law School, told USA TODAY Sports that he expects the U.S. Supreme Court to ultimately take up one of the LGBTQ employment cases in the next couple of years, since appeals courts have interpreted the Civil Rights Act differently.  

“There are more than 20 states, along with hundreds of municipalities, that prohibit discrimination based on sexual orientation,” Gould said. 

Indianapolis is one of those municipalities, although Blevins called it “more of a policy statement.”

“It’s better than nothing, but in reality there are no means to enforce it,” Blevins said. “If we had a claim, we wouldn’t seek a remedy in a state court.”


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