A lawsuit alleging anti-gay bias at oil-and-gas giant ExxonMobil may be terminated for jurisdictional reasons, unless the Illinois Human Rights Commission agrees to take on a review of an earlier decision from another body to dismiss the case.
The complaint, filed last year by the LGBT group Freedom to Work, is now pending before the 13-member commission after the Illinois Department of Human Rights, a lower body that investigates charges of discrimination, dismissed the case on Feb. 4, 2014 for lack of jurisdiction.
According to the Illinois Department of Human Rights, the request for review was filed on May 12, the deadline for when Freedom to Work needed to submit it. The Washington Blade learned about the developments last week after checking with the Illinois Department of Human Rights about the status of the complaint.
Peter Romer-Friedman, counsel to Freedom to Work and attorney at the D.C.-based public interest law firm Cohen Milstein Sellers & Toll PLLC, said in a statement to the Blade the Illinois Department of Human Rights made an “erroneous” decision to dismiss the charge based on a technical, jurisdictional issue.
“We are confident that the Illinois Human Rights Commission will agree with us that Freedom to Work has the right to file a discrimination charge against Exxon,” Romer-Friedman said. “Civil rights organizations have enjoyed and exercised this right for decades in Illinois. And the Illinois Human Rights Commission and Department have affirmatively recognized this right in the past. In fact, the Illinois Human Rights Act expressly states that civil rights organizations have standing to file discrimination charges with the Illinois Human Rights Department.”
According to the Department of Human Rights, the department will be served with notice of the request for review in a few days. After that, the department will have 30 days to respond to the request for review. The party requesting review, Freedom to Work, will then have 15 days to reply to the department’s response.
Sabrina Miller, a spokesperson for the Illinois Department of Human Rights, said she doesn’t anticipate the complaint will be resolved anytime soon given the recent developments.
“Based on the statutory briefing timetable I just described, it is unlikely any decision will be made prior to the end of summer,” Miller said. “That’s the best projection I can give at this time.”
Freedom to Work filed the complaint alleging anti-gay bias in hiring practices in May 2013 on the basis of two fictitious resumes sent to the company in response to a job posting in Illinois.
One was from a more qualified applicant who outed herself as LGBT on her resume by noting work at the Gay & Lesbian Victory Fund; the other was a less qualified applicant who gave no indication about her sexual orientation or gender identity. The less qualified non-LGBT applicant received multiple callbacks, the more qualified LGBT applicant received nothing.
Following the result of the paired resume testing, Freedom to Work filed the complaint before the Illinois Department of Human Rights, contending the company violated a 2005 law in Illinois prohibiting discrimination against LGBT people.
A copy of the notice of dismissal, signed by office associate Bernetta Davies and obtained Monday by the Washington Blade, asserts “there must be an employer/employee relationship” for the department to have jurisdiction in an employment case.
“Although the Respondent does meet the definition of employer; Complainant does not meet the definition of employee,” the notice concludes. “Complainant is an organization and not an employee within the meaning of the Act. Therefore, there is no employee-employer relationship. Further, an organization is not an applicant applying for a potential job with Respondent to be a potential employee.”
The notice of dismissal identifies attorney Gerald Maatman of the Chicago-based international firm Seyfarth Shaw as an attorney representing one of the parties in the case. Freedom to Work had identified Seyfarth Shaw as the law firm defending ExxonMobil in the case, but that was never corroborated outside of the LGBT group’s assertion.
The presence of the law firm’s name on the notice confirms the firm, which previously received a perfect “100” on the Human Rights Campaign’s Corporate Equality Index, is defending ExxonMobil against charges of anti-gay bias.
Neither ExxonMobil nor Seyfarth Shaw responded to multiple requests from the Blade seeking comment on the developments of the complaint.
The decision by the Illinois Department of Human Rights to dismiss the complaint on the basis of lack of jurisdiction is notable because it seems contrary to an earlier public statement given on the lawsuit. In a September 2013 article in The Advocate, Illinois Department of Human Rights spokesperson Mike Claffey is quoted as saying, “The facts as alleged would constitute a violation of the Illinois Human Rights Act.”
There is precedent in Illinois to sue for alleged discrimination on the basis of paired resume testing. In the 2000 decision in Kyles v. J.K. Guardian Security Services, the U.S. Seventh Circuit Court of Appeals in Illinois upheld the right of testers to bring these claims after two black testers brought a race discrimination action to federal court. They were allowed to proceed to a trial and later settled their claims with the employer.
Additionally, the U.S. Supreme Court has previously validated lawsuits on the basis of paired resume audit testing in its decisions on earlier litigation. In the 1982 case of Havens Realty Corp. v. Coleman, the court held testers can sue to challenge housing discrimination and that groups conducting the testing can also file a lawsuit to remedy discrimination.
Tico Almeida, president of Freedom to Work, had no comment on why his organization only discussed this information after the Blade discovered the developments last week as opposed to when the complaint was initially dismissed four months ago. Almeida deferred questions on the lack of disclosure to his counsel, who didn’t immediately respond to a request for comment.
Just last week, ExxonMobil shareholders rejected a proposed resolution at their annual meeting to include explicit protections against workplace discrimination on the basis of sexual orientation and gender identity in the company’s equal employment opportunity policy. The proposed resolution, submitted by New York State Comptroller Thomas DiNapoli, received support from only 19.5 percent of shareholders.
CORRECTION: An earlier version of this article incorrectly reported the Illinois Department of Human Rights didn’t give a reason for why it doesn’t believe it has jurisdiction in the case. The Blade regrets the error.