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Championing gay rights at the U.S. Supreme Court in 2013. Credit: Diego M. Radzinschi/ ALM

Gay rights advocates and the National Football League said an unnamed team should not have asked a prospective player whether he “likes men,” a question that spotlights broader risks for LGBT employees and employers in an unsettled legal landscape.  

The legal questions at play may be less clear-cut, however. Many companies have moved toward inquiring about sexual orientation status during the application process in an effort to diversify candidate pools.

“There are a lot of ways companies are working toward broader goals of diversifying the workplace. But it’s risky to actually ask it as a question,” said Sam Schwartz-Fenwick, who leads the LGBT Affinity Group at Seyfarth Shaw. “It’s raising a lot of legal risk if you are taking protected categories into consideration.”

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Thirty-one states do not include gay, lesbian, bisexual or transgender workers under anti-discrimination laws, and federal appeals courts are divided over whether civil rights law protect sexual orientation. “In the majority of states, if an employer did ask, ‘Are you gay?’ and didn’t hire that person, that person would have no legal recourse,” Schwartz-Fenwick said Friday.

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