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.

Alice'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...

ExxonMobil Needs to Step Up and Protect Its LGBT Employees: VIDEO

Freedom to World President Tico Almeida talks to Eliot Spitzer on Viewpoint about the NAACP's endorsement of marriage equality and a campaign targeting Exxon Mobil for its lack of corporate policies to protect LGBT employees from discrimination.

Says Almeida: "They are decades behind in adopting the principles of corporate leadership that so many Fortune 500 companies have already adopted because it's the right thing to do for business."

Watch, AFTER THE JUMP...

Freedom to Work Founder Tico Almeida Has 'Sliver of Hope' That Obama Will Sign LGBT Non-Discrimination Order: VIDEO

Freedom to Work President Tico Almeida returned to Viewpoint with Eliot Spitzer late last week to discuss Obama's refusal to sign an executive order banning LGBT discrimination in the workplace.

Almeida said that the White House was not happy with his appearance two weeks ago on Spitzer's show in which he discussed the meeting where it was announced that Obama would not sign the order.

Almeida said that he had a follow-up meeting with White House aides at a Starbucks and still has a "sliver of hope" that the executive order will get signed.

Watch, AFTER THE JUMP...

Tico Almeida Describes Baffling White House Meeting Over LGBT Non-Discrimination Snub: VIDEO

Freedom to Work's Tico Almeida, who spoke to Michelangelo Signorile in an interview I posted about earlier this morning about the White House's announcement that Obama won't sign an executive order protecting LGBT people from workplace discrimination, also spoke with Eliot Spitzer about the White House meeting he attended last week from which the news emerged.

Almeida describes how White House senior staff told them they were worried about a legal challenge from a conservative federal contractor, characterizing the meeting as a "slow motion train wreck" in which the representative White House counsel couldn't name one reason that signing the measure, which has broad political support, would put the Obama administration in danger legally.

Speaking politically, Almeida also sees it as a missed opportunity to corner Romney on the issue and "would have been a perfect opportunity to use this as a wedge against conservatives."

Check out the interview by Eliot Spitzer, AFTER THE JUMP...

LGBT Activists Blast 'Shallow, Unpersuasive' White House Punt on Non-Discrimination Order

SiriusXM Out Q radio host Michelangelo Signorile reports in the HuffPost on two interviews he did last week regarding the White House's odd announcement that Obama wouldn't be signing an executive order barring LGBT discrimination in the workplace.

The first was with Freedom to Work's Tico Almeida, who was in the meeting at the White House:

“It was weak, it was shallow, it was unpersuasive,” said Almeida of White House arguments made against signing the order, appearing on my radio program on SiriusXM OutQ. “It floated back and forth between different reasons. It wasn’t even consistent. There were a few younger, junior staffers who made some arguments that were just laughable. Really embarrassing.”

Almeida believes the rejection of the order is political. He theorized it was caused by “panic” at the White House in an election year, as the issue had suddenly risen above the radar in the media, after two gay men, members of the direct action group Get Equal, planned to confront Obama about it at the annual White House Easter Egg Roll.

Our legal expert Ari Ezra Waldman spoke with Almeida twice over the past year about the need for such an order, and about the likelihood that it was going to happen. Read their first interview here, the second here.

Signorile then spoke to Democratic strategist and gay former Clinton aide Paul Yandura:

In a separate radio interview, Yandura, who helped create Get Equal and has been critical of the White House for what he sees as foot-dragging, agreed: “The [activists at the] Easter Egg Roll was [a] brilliant move. That got the issue into the mainstream press. It got the White House smoked out on this.”

He criticized some gay groups for giving the president a pass on the issue, in the past and now.

“HRC sat on the polling they did [on this issue] from six months ago,” Yandura charged. “It was clear that the groups -- and if you want to say it in positive way -- the groups were trying to give the White House space to do the right thing. I would say they weren’t advocating on our behalf. I was told that everyone had agreed they were going to play an insider game. Well, I think we now as a community can see when you play an insider game, this is what you get.”

Yandura was especially critical of the LGBT advocacy group leaders and their unwillingness to push the President:

“The first email I see come out of NGLTF, after this big meeting that Rea Carey’s in, is a fundraising email,” Yandura continued. “They’ve sent nothing out to their list on this. So, if they’re supposed to be leading on ENDA -- they’re failing. I think we can watch by, 'What are our groups doing now?' Why wouldn’t Rea Carey and Joe Solmonese grow a pair and come out and say ‘I’m not going to stop until you sign this?’”

We Can't Wait: Is It Time for Obama to Sign an Executive Order on ENDA?

BY ARI EZRA WALDMAN

If you're sitting down for a Towleroad minute in Alabama, North Dakota, Indiana, or any of the 31 states where it is perfectly legal to be fired from your job for being gay, you may be asking yourself: what can we do about that? Democratic leaders like the retiring Massachusetts Congressman Barney Frank tried, but failed, to pass the Employment Non-Discrimination Act (ENDA), which would have banned discrimination on the basis of sexual orientation in employment much like Title VII bans workplace discrimination on the basis of sex. But, even though overwhelming majorities of voters of all stripes support such non-discrimination laws, conservatives in Congress are having none of it. 

Congressional action is not the only path. Many cities and towns have stepped in and passed similar non-discrimination ordinances or passed rules that ban anti-gay discrimination in any company doing business with that township. In response, conservative states are trying to pass laws that restrict a locality's ability to add sexual orientation to its non-discrimination rules. And, in response to those obvious anti-gay efforts, our advocates are challenging sexual orientation discrimination in all its forms in court.

But, mini-ENDAs here and there do not solve the problem. With Congress paralyzed by Republican obstructionism, President Obama is picking up the torch and running with it. His "We Can't Wait" campaign accepts that he tried to work with Republicans on a host of issues, they refused, and now he's paving his own way. He has already flexed his executive muscles with recess appointments, immigration rule changes, and job creation proposals. Is it time for him to sign an ENDA executive order?

To discuss the probability of an ENDA executive order from President Obama and what it could mean for America's gay workforce, I spoke with Tico Almeida, whom you may remember from a previous Towleroad interview. Mr. Almeida is the founder and president of Freedom to Work, a new national LGBT advocacy organization protecting those that have been fired or harassed on the job for being LGBT and advocating for comprehensive reform to our workplace discrimination laws. For Mr. Almeida's expert analysis, please continue AFTER THE JUMP...