Asking Derrius Guice if he likes men actually has some legal issues

On Thursday, former LSU running back and current NFL prospect Derrius Guice said that during the NFL Combine last week in Indianapolis, he was asked by a team if he liked men.

‘’It was pretty crazy,” Guice said in an interview on the SiriusXM NFL show ‘Late Hits,’ USA Today said. ”Some people are really trying to get in your head and test your reaction. ... I go in one room, and a team will ask me do I like men, just to see my reaction. I go in another room, they’ll try to bring up one of my family members or something and tell me, ‘Hey, I heard your mom sells herself. How do you feel about that?’“

Pro Football Talk — which said it confirmed that the question was asked — was the first to report on the story and gave the background:

It’s a question that keeps getting asked of incoming players, regardless of how many times the fact that it was asked leads to a supposedly increased awareness regarding the importance of not asking questions like this. Two years ago, cornerback Eli Apple faced that question in a pre-draft interview with the Falcons. The NFL dubbed the question “disappointing and clearly inappropriate,” and the league vowed to look into it. Three years before that, a team asked tight end Nick Kasa if he likes girls. The league dubbed the topic impermissible and said that persons asking such questions would be subject to discipline.

NFL spokesperson Brian McCarthy sent this statement to Outsports Thursday morning:

“A question such as that is completely inappropriate and wholly contrary to league workplace policies. The NFL and its clubs are committed to providing equal employment opportunities to all employees in a manner that is consistent with our commitment to diversity and inclusion, state and federal laws and the CBA. We are looking into the matter.

“The league annually reminds clubs of these workplace policies that prohibit personnel from seeking information concerning a player’s sexual orientation.”

Aside from being offensive and obviously inappropriate, there are actually a lot of legal issues at play here.

Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on race, color, religion, sex and national origin. In 2015, the Equal Employment Opportunity Commission concluded that Title VII also doesn’t allow sexual orientation discrimination in employment, since this is also a form of of sex discrimination. According to Sports Illustrated’s Michael McCann, the law does not prohibit sexual orientation discrimination by private employers, but 22 states and Washington, D.C. impose Title VII’s sexual orientation inclusion, per the Human Rights Campaign. It doesn’t really stop there, though. Via SI:

Given that the NFL combine is in Indianapolis and given that nearly all teams play home or away games in jurisdictions that prohibit sexual orientation discrimination, all NFL teams could be vulnerable to litigation if their coaches and scouts discriminate on the basis of sexual orientation. New York attorney general Eric Schneiderman made this point clear in his March 14, 2013 letter to NFL commissioner Roger Goodell. Schneiderman demanded that the NFL prevent employment discrimination in the recruiting process.

Both Indiana and New York, where the combine and NFL is headquartered, respectively, prohibit employment discrimination against sexual orientation. The NFL regards itself as an equal opportunity employer, too:

“It is the policy of the National Football League to provide equal employment opportunities to all employees and applicants for employment without regard to race, color, religion, sex, national origin, age, disability, sexual orientation or other status protected by applicable federal, state or local law.”

In 2014, the NFL released guidelines on hiring practices regarding sexual orientation. In fact, they literally state that draft-eligible players can’t be asked their sexual preferences:

INTERVIEWS AND HIRING

Coaches, General Managers and others responsible for interviewing and hiring draft-eligible players and free agents must not seek information concerning or make personnel decisions based on a player’s sexual orientation. This includes asking questions during an interview that suggest that the player’s sexual orientation will be a factor in the decision to draft or sign him. Examples: Do you like women or men? How well do you do with the ladies? Do you have a girlfriend?

This extends to the collective bargaining agreement signed by the NFL and NFLPA in 2011:

‘Sexual orientation’ was included for the first time in non-discrimination language of the 2011 collective bargaining agreement between the NFL and the NFL Players Association. NFL spokesperson Greg Aiello told Outsports it’s part of the increasingly inclusive NFL:

It was introduced early on in the drafting process of the CBA by our lawyers as something that needed to be included. It parallels the policies and practices of our own office, which include non-discrimination, domestic partner benefits, and the hosting of PFLAG and related events.

The tricky thing here is figuring out exactly when NFL combine participants become NFLPA members. On the one hand, it could be considered to start when a player attends the combine and interviews with and works out for teams. On the other, not every combine participant will make it into the NFL, making it more like an audition than a job. But the existence of agents and their relationship with the NFLPA muddles that a bit. Again, via SI:

First, the NFLPA licenses and regulates the agents who represent players at the combine. At least from the standpoint of monitoring agency practices, the NFLPA has a clear stake in happenings at the combine.

In 2016, a coach for the Atlanta Falcons asked cornerback Eli Apple the same question as Guice. Instead of Maquand Manuel being reprimanded by the league or the Falcons, he was encouraged to focus on “education.” As Outsports points out, if the NFL is serious about implementing the federal and league-wide sexual orientation discrimination policy, it’s time to act:

If the NFL is serious about eradicating this behavior — which, so far, it has not been — the league must hold both the team and the offending coach responsible.’

First, whatever coach asked the question should be suspended for Week 1 of the 2018 season. Just as with players, the way to send a message is to remove the person from participating in a game. Fines don’t get the message through. Banning them from participation does. Suspend the coach without pay for Week 1 of the upcoming season. He’ll never ask that question ever again.

Second, the team responsible should lose a fourth-round draft pick. The invasive, illegal question had to do with the upcoming NFL Draft. The punishment should be part of the Draft as well. Take away a fourth-round pick from a team for this, and you can be darn sure every team will guarantee questions about the sexual orientation of potential draftees will never, ever be asked again in the NFL.

It remains to be seen how the NFL will act.