A board member of the Human Rights Campaign works for a law firm that has defended oil-and-gas giant Exxon Mobil against charges of anti-gay bias, the Washington Blade has learned.
Although his employer asserts he had nothing to do with the defense of Exxon Mobil, his involvement with both the nation’s largest LGBT advocacy group and his international law firm, Seyfarth Shaw, raises questions about why HRC hasn’t publicly rebuked the firm for defending alleged anti-gay bias at the company, such as by docking the company points on the Corporate Equality Index.
Chris Carolan, who lives in Brooklyn, N.Y., is one of 32 HRC board members. According to HRC’s website, board members make policy, manage finances and coordinate volunteer involvement in addition to having ultimate authority over the organization.
He’s also a partner at the Chicago-based international law firm Seyfarth Shaw. According to his bio on Seyfarth Shaw’s website, Carolan is a partner in the New York office.
His practice, his bio says, focuses on transactional work, including banking and lending, private equity investments, real estate finance, venture financings, mergers and acquisitions as well as bankruptcy and restructuring.
In August, the Washington Blade first reported that Carolan’s law firm, Seyfarth Shaw, was responsible for defending Exxon Mobil against charges of anti-gay bias. That was confirmed in June by the publication of a legal document in the case bearing the name of the law firm.
The LGBT group Freedom to Work filed the complaint before the Illinois Human Rights Department last year on the basis of paired-resume testing in response to a job opening at the company.
For the same job opening, the group submitted two applications: One was from a more qualified applicant who outed herself as LGBT 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.
Exxon Mobil offers no explicit protections barring anti-LGBT discrimination in the workplace. Just last month, shareholders for the 17th time rejected a proposal that would have added such pro-LGBT protections to the policy. Only 19.5 percent of shareholders supported the failed resolution, which was sponsored by New York State Comptroller Thomas DiNapoli.
In February 2014, the Illinois Department of Human Rights dismissed the case for lack of jurisdiction, saying Freedom to Work has no employee-employer relationship with Exxon Mobil. However, Freedom to Work is asking the Illinois Human Rights Commission to review the case. The request is still pending, according to Freedom to Work, which considers the litigation ongoing.
HRC is already on the record in support of the lawsuit against Exxon Mobil. In a May 2013 email blast to supporters, HRC President Chad Griffin called the filing “a brave legal complaint from the equality advocates at Freedom to Work.”
Carolan’s employment at Seyfarth Shaw and membership on HRC’s board raises numerous questions, such as whether he ever voiced objections to his law firm’s participation in the lawsuit or was even aware of it happening. He didn’t respond to the Blade’s request for comment.
Brian Kiefer, a Seyfarth spokesperson, said Carolan had no involvement in the matter at hand when asked by the Blade about the litigation, but declined to comment further.
A secondary question is whether Carolan’s employment at Seyfarth Shaw discouraged HRC from taking against action the law firm after its defense of Exxon Mobil became known.
In August, Michael Cole-Schwartz, then a spokesperson for HRC, told the Washington Blade his organization would dock points from a law firm representing Exxon Mobil in an anti-gay bias lawsuit in HRC’s Corporate Equality Index.
“Yes, we would and have done so in the past,” Cole-Schwartz said at the time. “The firm Foley & Lardner was docked 15 points previously for their work representing organizations trying to stop marriage equality (engagements which have since ended and they are no longer docked), although it should be noted the firm has also had a long history of pro bono support for LGBT causes. For the 2012 CEI, we raised the possible point deduction from -15 to -25.”
But after it was revealed Seyfarth Shaw was the law firm defending Exxon Mobil, no deduction was assessed. A look online at HRC’s Corporate Equality Index as of Friday reveals the law firm still has a perfect score of “100.” Moreover, HRC has made no public statements in regard to Seyfarth Shaw working for Exxon Mobil.
Still, HRC has turned up the heat on Exxon Mobil for its policies. Following the announcement from the White House that President Obama is set to sign an executive order barring federal contractors from engaging in LGBT discrimination, HRC said it solicited a statement from the company asking if it would comply with the directive. The response purportedly from Exxon Mobil was that its policy included protections for LGBT people, even though it doesn’t explicitly mention sexual orientation and gender identity.
In a news statement at the time, Fred Sainz, HRC’s vice president of communications, said Exxon Mobil was lying about protections under the policy, saying the company’s response was “in fact a masterclass in doublespeak — crafted, no doubt, by a team of well-paid lawyers.”
HRC’s Sainz offered an extended response to the situation, saying HRC understands that law firms have duties to represent clients — even in unpopular situations.
“It is the court that is responsible for determining whether a lawyer’s client has violated the law based on the facts and law put before it,” Sainz said. “Unless a lawyer takes extreme steps that would harm the larger LGBT community, we, like all Americans, allow lawyers to participate in our adversarial judicial process without necessarily ascribing to them the behavior of their clients.”
Sainz added that at no time did anyone from Seyfarth Shaw consult with HRC about client engagement or engage in any kind of lobbying effort related to the Corporate Equality Index.
David Lat, a law blogger for “Above the Law,” has already raised questions about whether Seyfarth Shaw was compelled to defend Exxon Mobil against anti-gay discrimination.
“Large firms like Seyfarth are arguably too big to handle such controversial cases comfortably; they have too many current and prospective employees and clients who might be upset by their defense of alleged anti-gay bias,” Lat wrote in August. “In contrast, elite conservative boutiques like Bancroft or Cooper & Kirk, which defended California’s Proposition 8 ban on gay marriage, don’t have such worries. They are small firms, with fewer clients and employees, and many of those clients and workers are social conservatives, who would be unfazed by defending a large corporation accused of anti-gay prejudice.”
Tico Almeida, president of Freedom to Work, had no comment on the situation other than to call on Seyfarth Shaw to direct Exxon Mobil to adopt a more pro-LGBT policy.
“We do hope the lawyers at Seyfarth Shaw will urge their client Exxon to update its employment policies to specifically list sexual orientation and gender identity in its workplace protections,” Almeida said. “After years of Exxon management fighting against the shareholder resolution to add LGBT protections, it would also make sense for Seyfarth lawyers to give Exxon managers some training on creating equal opportunity for LGBT employees and applicants.”
The complete statement from HRC’s Fred Sainz in response to the situation follows:
Like the vast majority of Americans, HRC recognizes that our judicial system requires parties on different sides of a dispute to vigorously advocate for their position before a court based on both the facts and applicable law. Lawyers and their firms have ethical duties to represent clients, even unpopular ones, who are accused of violating the law or otherwise have a need for legal representation. It is the court that is responsible for determining whether a lawyer’s client has violated the law based on the facts and law put before it. Unless a lawyer takes extreme steps that would harm the larger LGBT community, we, like all Americans, allow lawyers to participate in our adversarial judicial process without necessarily ascribing to them the behavior of their clients.
In two extraordinary circumstances, HRC has criticized law firms that have taken affirmative steps beyond simple legal representation to advocate anti-LGBT positions and take on matters that would have a significant adverse impact on the larger LGBT community.
In the case of Foley & Lardner, HRC deducted points from the firm’s CEI score in 2011 because of the firm’s leadership and advocacy on behalf of the National Organization for Marriage, the nation’s leading anti-LGBT organization. In particular, we witnessed a firm partner advising community members who made anti-LGBT statements at a public hearing. This partner was also registered as a lobbyist for NOM, and the firm made false and hurtful arguments in legal correspondence to a state agency. In a letter to the firm chairman, we explained why we considered the firm’s actions at the time to be outside the scope of its professional responsibilities.
With regards to King & Spalding, HRC criticized the firm for voluntarily accepting taxpayer funds to take up the House Republicans’ defense of the Defense of Marriage Act, the law struck down last year as unconstitutional by the Supreme Court. This highly unusual representation would have had a significant negative impact on LGBT Americans and would have required the firm to make inaccurate and harmful representations about LGBT people. Moreover, the firm had no obligation to take on this new high profile client and matter or to defend a government actor that was capable of providing its own representation.
We take seriously our role in calling out behavior, whether by an individual, corporation or a law firm, that is intended to harm the LGBT community. Over the years HRC has taken the lead in criticizing Exxon Mobil for its lack of commitment to equality, including recently revealing that it lied about its non-discrimination policies. At the same time, we recognize the ethical principles that law firms operate under every day, which include defending their clients against allegations that they may have broken the law.
We do not criticize lawyers and firms for the roles they are expected to play in ensuring the fair application of justice. But we also expect that that they will act within the scope of these ethical obligations and we will hold those that act outside of them in ways that are harmful to the LGBT community accountable for their actions.
At no time did anyone from Shaw consult with HRC about their client engagement nor did they engage in any kind of lobbying effort related to the CEI.