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Illinois Finds ‘Substantial Evidence’ ExxonMobil Engaged In Anti-Gay Discrimination

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The Illinois Department of Human Rights announced that it found enough evidence that oil and gas giant ExxonMobil engaged in anti-gay discrimination in its hiring practices reports The Washington Blade. LGBT group Freedom to Work and the Equal Rights Center, an organization with experience in résumé testing practices, filed a complaint against the oil company in 2013 for allegedly engaging in anti-gay bias for a position in Illinois, which has a state law banning discrimination in employment based on sexual orientation.

Both organizations submitted two fictitious résumés to the company in response to a December 2012 job posting in Illinois according to court documents. One résumé denoted that the qualified applicant is gay, listing her work at the Gay & Lesbian Victory Fund, and the other denoted a less qualified applicant without any indication of gender identity or sexual orientation. The less qualified applicant received multiple callbacks, up to three, while the qualified LGBT applicant didn’t receive any.

The lawsuit seeks restitution in requiring ExxonMobil to enact pro-LGBT protections and training in employment practices in addition to collecting attorneys’ fees. Peter Romer-Friedman, the counsel to Freedom to Work in its proceeding against Exxon, is happy that Freedom to Work is holding the oil company accountable.

Said Romer-Friedman:

"It’s about time that someone held Exxon accountable on behalf of the LGBT community, and I’m so proud of Freedom to Work for its leadership in bringing that accountability to the largest company in the world."

However, ExxonMobil announced last week that it integrated explicit language barring discrimination based on sexual orientation or gender identity into its equal employment opportunity policy. The company enacted the change after President Obama signed an executive order barring federal contractors from committing anti-LGBT job bias. Tico Almeida, the president of Freedom to Work, said the continuation of the lawsuit against ExxonMobil is necessary despite the recent policy change.

Said Almeida:

Almeida"Exxon was recently forced by President Obama’s executive order to add gay and transgender employees to the corporation’s equal employment policies, but those were merely changes on paper.  

"We must ensure that LGBT employees actually get a fair shot in their careers at Exxon, not just on paper. Freedom to Work will continue to prosecute this civil rights case and hold Exxon accountable for its anti-gay discriminatory conduct from the recent past."

Two paths are open in the case for Freedom to Work: filing before the Illinois Human Rights Commission or with the Circuit Court that has jurisdiction over the case. Mike Theodore, a spokesperson for the Illinois Department of Human Rights, said Freedom to Work must file within 30 days to continue with the lawsuit jointly before the Illinois Department of Human Rights, but has an additional 60 days to file independently with the commission or circuit court. 

The Illinois Department of Human Rights’ findings reveal ExxonMobil’s defense for opting to choose the less qualified non-LGBT candidate over the more qualified LGBT candidate. The findings show that Donna Steadman, a human resource adviser for ExxonMobil, denied sexual orientation was a factor in the hiring decision. She testified she selected in the initial screening process for her boss 35 applicants out of the 51 who applied by "looking at their experience, not their volunteer work and their education."

"Steadman stated she did not have a narrowing tool, her process was to open the résumé and skim it for certain words," the finding states, "She felt 35 applicants was a significant number of applicants to pass on. She felt she was passing on a lot of documents for review and she was providing a lot of candidates with experience he had outlined. She was not keeping a tracking sheet for all 51 of them, in fact, she does not know if she opened all 51 of them."

Scott Silvestri, a spokesman from ExxonMobil, said that the company has not received anything on the findings from the Illinois Department of Human Rights, but pledged to fight the lawsuit.

Said Silvestri: 

"We intend to defend the company’s position in the matter because the claims in the complaint are baseless. Sexual orientation or gender identity played no role in the hiring decision because of our zero-tolerance discrimination policies. It is inaccurate to suggest otherwise."

ENDA's Problems and Potential


The Employment Non-Discrimination Act (ENDA), which would protect millions of Americans from being fired from their jobs simply because of their sexuality, will likely pass the United States Senate soon. A small handful of Republicans (Sens. Collins, Hatch, Heller, Portman, Ayotte, Kirk, and Toomey) joined every Democrat and Democratic-aligned Independent to overcome a Republican filibuster that would have prevented the Senate from even discussing the bill. The bill will most likely never pass the Republican-controlled House.

EqualityThe discussion on ENDA now turns to the law's religious exemptions. I wrote previously about the dangers of those exemptions: they are gaping holes in equality that threaten to make equality meaningless if left unchecked. Controversy surrounding those exemptions occupied nearly an entire hour of discussion during the "ENDA Situation Room," an expert roundtable streamed live here on Towleroad, hosted by leading ENDA advocate and Freedom to Work Founder Tico Almeida and co-hosted by New York Law School. What to do about proposed exemptions is dividing leaders of the gay community, pitting Lambda Legal and Human Rights Campaign advocates on different paths.

Not all religious exemptions to equality laws are bad; no one wants to force a church or synagogue to do something that its liturgy tells it not to. But a cavalier approach to these exemptions could be very bad. The ENDA religious exemption debate is not, counterintuitively, just about exemptions to ENDA's application. It is about future judicial interpretations of ENDA. It's about every future LGBT equality law. It is about accepting that LGBT equality is some special category of equality that unnecessarily gets a shorter reach, like swiss cheese with extra holes. It is about elevating and changing an unrelated right to an antagonist of equality. And every religious exemption that we let slide weakens our position on all of these issues in the next fight.


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FL Senator Bill Nelson Co-Sponsors ENDA; Advocates Pressure Final Two Dem Holdouts

6a00d8341c730253ef017c385d242b970b-800wiYesterday, after facing considerable pressure from both the LGBT rights movement nationally and advocates in his home state of Florida, Democratic Senator Bill Nelson announced his support for the Employment Non-Discrimination Act, according to the Washington Blade:

The senator’s name is listed as among the sponsors of ENDA on “Thomas,” the website for the Library of Congress that monitors legislation. According to the website, Nelson signed on as a supporter Monday, the same day Senate Majority Leader Harry Reid (D-Nev.) announced that a Senate vote on ENDA would take place before Thanksgiving.

The news was first reported via Twitter by the New York Times’ Jeremy Peters.

The Florida Democrat’s office didn’t immediately respond to the Washington Blade’s request to comment on why the senator had come to support ENDA. In an interview with the Tampa Bay Times in July, Nelson had expressed concerns about the transgender protections in the bill.

ENDA, which would ban employers from making hiring and firing decisions based on sexual orientation or gender identity or expression, now has 54 sponsors in the Senate, and will gain a 55th when Senator-elect Cory Booker joins the chamber to represent New Jersey.

Nelson's announcement came just one day after Senate Majority Leader Harry Reid of Nevada promised that ENDA will receive a vote on the Senate floor before Thanksgiving, and possibly within the next week or so.

This summer, ENDA was reported out of the Senate Health, Education, Labor & Pensions Committee on a bipartisan 15-7 vote, with Republican Senators Mark Kirk of Illinois, Lisa Murkowski of Alaska and Orrin Hatch of Utah joining the committee's 12 Democrats to advance the bill.  If those three senators support ENDA on the Senate floor, it will be just three votes shy of overcoming a Republican filibuster.

6a00d8341c730253ef01630442fff6970d-800wiWith only two Democratic senators holding out on endorsing ENDA--which would put the bill just one vote away from a filibuster-proof majority--LGBT advocates are ramping up the political pressure directed at the reluctant lawmakers.  As Tico Almeida, founder and President of Freedom to Work put it in a statement following Nelson's announcement, proponents of ENDA expect a unified Democratic caucus to put its support behind the bill:

“Senators Manchin and Pryor are now the only two Democrats playing coy about whether they will stand on the right side of history. ENDA simply says a corporation can’t fire you just because of who you are or who you love, and Americans want a country where people are  judged for the job they do based on their skills and hard work, not  their sexual orientation or gender identity.  We urge Sen. Manchin and Sen. Pryor to stand with the majority of Americans, and the majority of people in their states and support the LGBT freedom to work.”

Despite the LGBT movement's push for the passage of ENDA, some in the community have expressed reservations about the bill's religious exemptions.  In a statement issued today, the LGBT organization GetEQUAL said that the exemptions written into ENDA could set a "dangerous, unnecessary, and un-American precedent":

“While we are glad that ENDA will receive a vote in the Senate for the first time in almost 20 years, we are dismayed that the bill continues to excuse religious bigotry as acceptable under the law. Broad religious exemptions in the bill actually make it possible that institutions such as schools, hospitals, and universities can continue discriminating against LGBT employees and prospective employees.

We’re calling on progressive champions in the Senate — including Senators Elizabeth Warren, Al Franken, Kirsten Gillibrand, and Sherrod Brown — to speak out against these exemptions, establishing a clear record that these exemptions are not necessary and are not acceptable in 2013.”

Despite Bipartisan Support, Three Democratic Senators Still Undecided On ENDA


Despite the recent bipartisan endorsement that the current incarnation of the Employment Non-Discrimination Act (ENDA) received from the Senate Health, Education, Labor & Pensions Committee (HELP), The Washington Blade reports that three key Democratic senators, Sens. Joe Manchin (D-W.Va.; pictured above left), Mark Pryor (D-Ark.; above center), and Bill Nelson (D-Fla.; above right), are still holding out on offering their support for the bill:

"Manchin ignored questions from the Blade on how he’ll vote on the bill. His response to the final question: 'It’s very nice to meet you.'

Pryor was similarly non-committal. Asked whether he was familiar with the legislation, the senator replied, 'I am in concept, but I haven’t seen it or read it yet.'

Asked for a sense of how he’ll vote on ENDA, Pryor said he needed time to review the bill, adding, 'I’ll just have to look at it.”

Nelson couldn’t be reached on Capitol Hill for a comment on how he’ll vote on ENDA. The Florida senator’s office — along with the offices of Pryor and Manchin — hasn’t responded for six weeks to the Blade’s requests for comment on ENDA...

Although the lack of commitment from Pryor and Manchin may not be surprising because they’re among the Democrats who don’t support marriage equality, Nelson’s silence is striking because he supports same-sex marriage. In May 2010, the senator also voted for “Don’t Ask, Don’t Tell” repeal as a member of the Senate Armed Services Committee even before the Pentagon report on open service came out later that fall."

Many LGBT advocates have called on Senators Nelson, Pryor and Mancin to announce their support for the bill and join as co-sponsors. Tico Almeida, president of Freedom to Work, told the Blade,

“The three holdout Senate Democrats are alienating themselves further from the Democratic Party and ignoring American values of hard work and success with every passing day that they stubbornly refuse to cosponsor the bipartisan ENDA.”

White House spokesperson Shin Inouye insisted that administration officials are lobbying the Senate to ensure a successful vote in favor of ENDA.

HRCThe bill, having advanced out of committee with the support of prominent Republicans such as Sen. Orrin Hatch (Utah), is widely believed to receive an up or down vote after Congress's August recess, according to HELP chairman Sen. Tom Harkin (D-Iowa). Meanwhile the Human Rights campaign has begun a $2 million campaign to rally bipartisan support for ENDA, with plans to engage in "grassroots activities to encourage Republican votes for ENDA in Arizona, Idaho, Indiana, Nevada, New Hampshire, New Jersey, Ohio and Pennsylvania." ENDA's proponents are primarily concerned with mustering 60 yes votes in the Senate thus securing a filibuster-proof super-majority in support of the bill, a de-facto requirement for nearly all Democratic legislation in the Senate since President Obama took office in 2009. LGBT advocates of the bill believe they have a strong message they can pitch to a broad swath of American voters about why passing ENDA is crucial: Americans value "hard work," "fairness," and won't stand for discrimination.

However, should ENDA pass the Senate it faces a steeper uphill battle in the Republican-controlled House of Representatives. Earlier this month, gay co-author of the McCain-Feingold Act, Trevor Porter, suggested that a discharge petition was the surest solution to passing ENDA in the House where some Republican members are expected to have reservations about approving the bill given the protections it provides to individuals discriminated against based on their gender identity.

Though many, including Sen. Hatch, remain pessimistic about ENDA's chances in the House, LGBT advocacy groups are stressing the importance of focusing on winning senate approval before delving into the myriad of complications that await ENDA in the House. Jeff Cook-McCormac, senior adviser to the newly formed Republican-affiliated American Unity Fund, commented:

“Getting the House to move is going to require initial Senate action...I think that the real critical focus for this coalition of business and labor, of the gay community and employers, is building on the overwhelming vote in the Health, Education, Labor & Pensions Committee to get to floor consideration, to get the majority that we need and then to begin to work in a careful and thoughtful way with House Republicans to think through ways that this important measure can be realized.”

'Discharge Petition' Floated as ENDA Solution as LGBT Advocates Plan 'Situation Room'

The gay co-author of the McCain-Feingold Act is suggesting that a discharge petition might be the solution to get the Employment Non-Discrimination Act (ENDA) passed in the Republican-controlled House, the Washington Blade reports:

PotterTrevor Potter, a Republican attorney with Caplin & Drysdale who specializes in political law, told the Washington Blade on Tuesday that a discharge petition is “the only way” to get ENDA passed while Republicans remain in control of the House.

“Given the House GOP leader’s opposition to ENDA, and resulting refusal to schedule it for a floor vote, the ONLY way to get it passed in the House is by way of a discharge petition,” Potter said via email. “If the petition gets close to 218 signatures, then the leadership will negotiate.”

Asked whether those words should be considered an endorsement of a discharge petition, Potter replied, “I’m not in the business of endorsing strategies — just commenting on them and analyzing them. I’m just a lawyer, not a political strategist.”

The signatures of 218 lawmakers would bring the bill to the floor regardless of the wishes of House leadership, which would require the wrangling of 40 more supporters to add to the bill's 178 current sponsors, the paper adds.

The suggestion comes as LGBT advocates are making plans for "Situation Room" strategy sessions, the Blade adds:

Freedom to Work is planning the first “situation room” meetings in September and intends to invite executive directors of other LGBT groups to attend — as well as members of the media — to discuss work on ENDA.

Tico Almeida, president of Freedom to Work, said his organization plans to rent the venue and hold a live webcast so the public can watch online and ask questions via Twitter.

ExxonMobil on Trial for Anti-Gay Discrimination


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,

Continue reading "ExxonMobil on Trial for Anti-Gay Discrimination" »


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