Ari Ezra Waldman | ENDA | ExxonMobil | Law - Gay, LGBT | Tico Almeida

BigGayDeal.com

ExxonMobil on Trial for Anti-Gay Discrimination

By ARI EZRA WALDMAN

Two applicants apply for the same job -- Marketing Associate for EnormoCorp. The applicants, Alice and Barbara, are identical in some ways: same college, same gender, even the same hometown. But Alice is consistently superior in the relevant qualifications: Alice has a 3.8 GPA to Barbara's 3.2; Alice has been a Marketing Assistant for 5 years, Barbara for only 2; Alice's skills in Excel and other computer programs, all of which are listed in the job description as necessary for the job, is "excellent," but Barbara can only boast of "proficient" skills.

ExxonmobilAlice's resume also notes that she is the treasurer of her local chapter of the Gay and Lesbian Victory Fund. Barbara does volunteer campaign work for Emily's List, the organization that helps elect women candidates.

If you ran human resources for EnormoCorp, you'd at least want to interview Alice first. She's the more qualified of the two applicants.

ExxonMobil does things a little differently. It discriminates against the LGBT applicant because it can.

In December of last year, the gay rights organization Freedom to Work and its founder, Tico Almeida, wanted to expose incident of Exxon's antigay discrimination. Mr. Almeida tested the company with two ghost applicants just like Alice and Barbara, and Exxon went for Barbara. In fact, Exxon didn't just opt for the non-gay candidate; when she never responded to their several calls to come in for an interview, Exxon never even contacted the gay applicant as a back up! Along with Peter Romer-Friedman, an attorney at Cohen Milstein Sellers and Toll PLLC, Mr. Almeida is suing Exxon for violating Illinois's nondiscrimination laws. And they're going to win.

The most remarkable thing about this case is not that it highlights the need for a federal LGBT nondiscrimination act. Nor is it that this kind of discrimination happens every day. Those facts are, in fact, quite unremarkable. Rather, what's amazing is that even though the technique of sending in "testers" like Alice and Barbara has been outrageously successful in identifying and stopping discrimination against African Americans, Hispanics, the disabled, and other protected groups, this is the first time it has been used to advance the cause of gay rights.

I will be following this case every step of the way, bringing you updates and progress reports, as well as insights into the employment discrimination litigation process.

I start with the basics: how this case came about and why it's so important,
AFTER THE JUMP...

In one sense, this case really started 14 years ago when Exxon bought Mobil and actually erased Mobil's gay nondiscrimination rule. The issue has been simmering and boiling over regularly since then, most recently at Exxon's latest shareholder meeting where LGBT nondiscrimination was again voted down with the active support of the company's directors.

More accurately, this case -- captioned, Freedom to Work v. ExxonMobil Corporation -- is one in a long line of what civil rights attorneys call "testing cases." African American civil rights organizations have used this technique with considerable success. For example, two couples, one black and one white, go into a leasing office at an apartment building and show financial credentials that clearly make the black couple the better leasee. The building's decision not to rent to the more qualified applicant can be the beginning of a housing discrimination case.

That Mr. Almeida's version of Alice and Barbara didn't ever exist except on paper doesn't matter.

"The way this plays out in reality is no different than how it would play out in this test," Mr. Romer-Friedman said. The beauty of the test is that it gets us as close as possible to a lab experiment setting, Mr. Romer-Friedman notes. "It shines a light on what's actually happening to demonstrate that what you have is sexual orientation-based discrimination."

In other words, testing attempts to control for all other possible factors by making the choice as stark as possible: either choose the better qualified minority or choose the less qualified majority.

Testing, therefore, is an essential piece in any civil rights litigation puzzle.

First, testing is necessary to find concrete examples of discrimination. Mr. Romer-Friedman, an experienced employment lawyer, knows that it's notoriously difficult to document and uncover discrimination in the hiring process, so we need these kinds of experiments to quiet all the noise, focus on blatant discrimination, and bring actual cases to light.

Second, the mere fact that testing exists as a legitimate law enforcement strategy has the positive effect of reducing discrimination. "The fact that employers know that they may be subjected to testing puts them on notice not to discriminate or they may face legal action," Mr. Romer-Friedman said.

And, third, testing not only worked well in the past, but the Supreme Court has recognized it as a legitimate and necessary technique.

AlmeidaTo my knowledge, Mr. Almeida (pictured) of Freedom to Work is the first attorney to use testing to advance the cause of gay rights. We know Mr. Almeida from his efforts to get Congress to pass the Employment Non-Discrimination Act (ENDA) and to push President Obama to side step Republican obstructionism by issuing an ENDA executive order, which would apply to federal contractors like Exxon. In the past year, he has shifted a portion of his organization's resources to investigate and combat discrimination on the basis of sexual orientation and gender identity. "Freedom to Work is launching a testing project, the only one of its kind in the country, in which we are testing numerous companies in numerous states," he said.

But the importance of Freedom to Work v. Exxon Mobil goes beyond finding particular incidents of discrimination. It reminds us that every day, hundreds of thousands of LGBT Americans are looking for work in states where being gay can disqualify them from even getting a foot in the door. "Filing this lawsuit has an important educational value," for the American population as a whole and corporate America, said Mr. Romer-Friedman. "We hope that this lawsuit can cause Exxon to come to the table and understand why it's important to have a policy to protect LGBT Americans." 

It is also a necessary reminder for those of us in the gay community. 

"As ENDA advocates," Mr. Almeida told me, "it's important that we do this. Enthusiasm for ENDA stalls [in our community] when marriage is on the table because there seems to be so many more compelling personal narratives about marriage and gay couples who want to get married."

He's right. How many warm and loving, sometimes heartbreaking, but always inspiring videos do we see about two people who just want to get married? Compare that to how many videos we see about employment discrimination. There's a natural bias against those narratives built into the legal process: employment discrimination cases tend to settle with confidentiality clauses, preventing anyone from reporting on how bad things really are. Freedom to Work is trying to build that narrative one case at a time.

***

Follow me on Twitter: @ariezrawaldman

Ari Ezra Waldman is the Associate Director of the Institute for Information Law and Policy and a professor at New York Law School and is concurrently getting his PhD at Columbia University in New York City. He is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. Ari writes weekly posts on law and various LGBT issues.

Feed This post's comment feed

Comments

  1. I have some personal experience here... I applied to a relatively high-level job at Exxon with a gay and lesbian organization mentioned explicitly on my resume. Not only did they give me an interview, but they extended a job offer.

    Posted by: Woods | Jun 5, 2013 12:50:32 PM


  2. Woods - your experience is what is called 'anecdotal evidence' and is of no significance because one has no knowledge of who the other applicants are or what they offered. There may simply have been no other candidates who had your qualifications and the fact that they hired a gay person does not mean that they don't discriminate when they have a choice.This is why the "test" is so extremely important : it gives verifiable data and has been accepted as evidence of discrimination.

    Posted by: Alex Parrish | Jun 5, 2013 12:58:31 PM


  3. And yet millions of gay people fill up their tanks at Exxon/Mobile EVERY DAY, even when a gas station across the street has cheaper gas and has GLBT discrimination policies and benefits.

    Posted by: TampaZeke | Jun 5, 2013 1:00:54 PM


  4. What proof can you provide Woods? Otherwise you are just another poster on an website.

    Posted by: RITA | Jun 5, 2013 1:01:48 PM


  5. I agree that my experience is anecdotal, but so is the complaint in the article. I'm not making the case that Exxon has great gay policies. Its policies are terrible. Last time I checked, they don't have a non-discrimination statement and they don't recognize my marriage. Some parts of the company may indeed discriminate in hiring. But my hiring experience was different, so I thought I'd share.
    As for proof, I suppose I could scan my offer letter and put it online, but that's a lot of work to defend a company with such bad policies.

    Posted by: Woods | Jun 5, 2013 1:28:18 PM


  6. Woods, thank you for sharing your experience. It is relevant, though I agree with you that this company is a pariah when it comes to equality issues. I will never understand why that is. Speculation focuses on their CEO, but it may just be institutional DNA.

    Posted by: Joe in Ct | Jun 5, 2013 1:41:40 PM


  7. It's more about their shareholders. Many of their investors are former employees, who are very conservative, oilfield and refinery workers in Texas. Most of the white-collar folks I knew at the company thought the policy was atrocious.

    Posted by: Woods | Jun 5, 2013 1:50:00 PM


  8. Being based on just two test applications, isn't this case a bit thin? I'm not saying it's not discrimination, but it's possible to explain away one case as some kind of fluke. Better to prove a pattern.

    Posted by: Steve | Jun 5, 2013 1:57:44 PM


  9. A 'protected' class? Ari, are white males without benefit of nepotism and from 'disadvantaged' backgrounds so-called protected? "African Americans, Hispanics, the disabled, and other protected groups", other meaning most prominently females. Are Asians a 'protected' class? If not, why not? How about Jewish people? Muslims? So, a non-disadvantaged, privileged 'connected' white woman or girl, Hispanic, African American, disabled, etc. [YES, they all exist] are 'protected' and in many cases given legally preferential treatment and status, but a white boy or man from a disadvantaged background isn't? He is the enemy? The oppressor? I just want to get this straight, no pun intended.

    As for 'disabled':

    What exactly constitutes disabled in regards to employment status? I know federally subsidized housing for the elderly AND disabled always has A LOT of 'disabled' who don't show any outward signs of being disabled, but apparently they are legally considered 'disabled'. Mental disabilities? Which kind are protected, which aren't? Alcoholics? Drug addicts?

    From what I know about HR departments and large corporations I find it very hard to believe any of them in the U.S. actively discriminates against anyone on the list of federally 'protected' people. I've NEVER known a corporation that wasn't obsessed with legal liability and being civilly sued or sued by the federal government. They are also HOUNDED by advocates for this or that group to hire and have 'benchmarks' for people from their community. Corporations generally BRAG about their 'diversity' and try to one-up each other to receive awards, which they can brag about further still. And lets not forget the federal government rewards employers who hire certain 'protected' people with financial incentives such as tax credits.

    In my experience most big employers and corporations will bend over backwards to hire and retain female [especially female], black, and other 'protected' employees. It's generally the white guys without benefit of nepotism or some other over riding connection that they least care about and can pretty easily fire/terminate at will, minus any given contract of course. They know there's no such thing as any advocacy group for white males, even disadvantaged ones. They also know the government could care less about this subject when it comes to white males.

    Now of course people will say they discriminate by simply not responding to 'protected' people's applications and resumes. This is an interesting aspect of corporate hiring. It's amazing the raw power that HR person who is the first person to get an application or resume has on whether it goes forward or is tossed in the trash. Recruiters also have this power. It's true, it can be extremely difficult for ANYBODY to get past this part of the process if they don't have good referrals from professionals in their field, better still internal references. But saying such and such an incident happened where such a such person got a reply while another didn't is anecdotal. You could easily do the same "sting" using people of all the same 'race', protected class or all non-protected class, of similar qualifications, and come up with results where some received replies, some didn't. Getting hired for a professional job for anybody, protected or non-protected, is difficult. Easier for those [of whatever 'class'] who can benefit from nepotism, connections, top notch references, etc.

    +++++++++++++++++

    There are certain exceptions to what I wrote above, IMHO.

    1) Age. Age discrimination most certainly exists. There are a variety of reasons for this, depending to a degree on what industry and field we're talking about. But it's real and a problem.

    2) Gays. Yes, I do believe discrimination against gays is still a problem in employment, housing, etc. I think this is true even in states that have legal protections for gays. But overall, gays certainly do not have the kind of 'protected' status and legal privileges other 'oppressed' groups have.

    Posted by: ratbastard | Jun 5, 2013 2:02:50 PM


  10. Insane wall of text? Got to check the name an sure enough it's ratbastard trolling.

    Posted by: Steve | Jun 5, 2013 2:16:14 PM


  11. @Steve,

    It's properly spaced and reasonably grammatical and to the point. Don't get your panties in abunch. AND IT'S FAR FROM BEING A TROLL POST.

    Actually Steve, your post above is the troll post, not mine.

    Posted by: ratbastard | Jun 5, 2013 2:27:08 PM


  12. I agree with Steve's post that this seems to be pretty thin gruel -- especially since you have to consider that ExxonMobil (like most major corporations) typically run their application process through a centralized website... which in this case is likely based in Irving or Houston, not where the job is necessarily located.

    So they're going to have to prove on the basis of just two ghost applicants that ExxonMobil's entire employment process runs afoul of Illinois state law when the initial screening may not have even been in the hands of anyone from that state.

    I would also wonder what position was being applied for -- and if that position was actually with ExxonMobil and not a franchisee.

    This is not to defend XOM at all, but it will be interesting to see if the case actually has legs.

    This tactic also flies in the face of the arguments that are often made about passage of ENDA not leading to litigation (based on past history with LGBT non-discrmination statutes) -- which opponents of ENDA will surely latch onto.

    Posted by: Mike in Houston | Jun 5, 2013 2:48:07 PM


  13. Like @Woods, I applied for a high-level position at ExxonMobil and placed a LGBT organization job at the top of my resume. Not only did get the job, my new boss and coworkers took me out to celebrate at a gay club and bought me a lap dance from a male stripper.

    Then again, like @Woods and @Joe in Ct (who gave him kudos), I may just be a reverse troll/PR guy (even the same guy for both names) putting a pro-ExxonMobil post on a negative story to try and spread false positive PR about a company that has undeniably anti-LGBT policies and practices. Guess we'll never know.

    Posted by: Jeff | Jun 5, 2013 10:08:46 PM


  14. I'm glad Exxon has values and decency. From here on out, I'll look for ExxonMobil to buy gas from.

    Posted by: Krajci | Jun 5, 2013 10:16:47 PM


  15. I believe both reports of non-discrimination, but the point of the law is that you _never_ discriminate. Not even once. It's clear that in this case they did, and that is the nucleus of a case.

    Posted by: Dave | Jun 5, 2013 10:50:11 PM


  16. I worked as a consultant for the oil industry for almost a decade with all of the large multi-nationals (Shell, BP, Chevron, CcnocoPhillips, ExxonMobil, etc.) ExxonMobil employees were almost comical in the way they were just brainwashed Republic drones - by far the worst of the bunch!

    It was made very clear to me that I was never to reveal my sexuality when working with them for fear of losing the contract.

    I've had more than one European colleague who had never experienced their institutionalised brand of climate denying conservatism would pull me aside after a day of meetings saying that they didn't believe people like that actually existed!

    By far my favourite was hearing the senior VP for another oil company, with a doctorate in petroleum geology, trying to explain over cocktails how the earth was only 6000 years old :-/

    Oof.

    Posted by: Cole | Jun 6, 2013 12:56:17 AM


  17. Oh man, white male complaining about racial discrimination. That's basically on the level of bigots complaining about lack of tolerance.

    No, you don't get to complain, period. You have it so good on levels you can't begin to understand until you're brown.

    Posted by: Mike B. | Jun 7, 2013 2:48:58 AM


Post a comment







Trending


« «Defense Secretary Hagel May Attend LGBT Pride Celebration as Trans Service Members Make Headlines« «