Exxon Mobil is facing an employment discrimination lawsuit based on a legal strategy of resume audit testing that revealed an apparent anti-gay bias in hiring practices.
On Wednesday, the LGBT group Freedom to Work filed a complaint with the Illinois Human Rights Commission contending Exxon Mobil violated a 2005 law in the state prohibiting discrimination against LGBT people.
The case, Freedom to Work v. Exxon Mobil Corp., is novel because the employment discrimination alleged is the result of resume audit testing. Under the strategy, fictitious resumes are sent for the same job opening in an attempt to reveal a candidate belonging to a minority group is unable to land a position.
Tico Almeida, president of Freedom to Work, said black and disability civil rights groups have employed the strategy with great success for decades, but his group’s lawsuit marks the first time an LGBT group has tried it.
“Although they went to the same high school, the LGBT candidate has a higher GPA,” Almeida said. “Although they went to the same college, the LGBT candidate has a higher GPA. Although they do the same kind of work, the LGBT person has longer work experience and better work experience. And then you see who they call back.”
In the test for anti-LGBT bias at Exxon Mobil — which has no non-discrimination policy protecting LGBT workers and has long been criticized by LGBT groups for alleged discrimination in hiring — Freedom to Work sent two applications in December from applicants for an administrative assistant position in Pataka, Ill.
One resume, written for “Jennifer Priston,” demonstrated a candidate who was well-qualified for the position, but outed her as LGBT because she had volunteer experience working for the Gay & Lesbian Victory Fund. The other resume, written for “Michelle Caland” was less qualified in terms of work experience and education, but offered no indication she was LGBT.
Even though Caland was less qualified, she received multiple call backs in response to her application. Priston never received a call back in response to her application even after Caland didn’t respond.
The results of the testing and the pending lawsuit, Almeida said, will force Exxon Mobil to explain why the company “so desperately” wanted the less qualified non-LGBT candidate over the more qualified LGBT applicant.
“We know that they cannot credibly claim that they didn’t receive the LGBT resume and application because when they were submitted, they sent back to both applicants a receipt acknowledgement saying, ‘Thank you for your application from Exxon Mobil,'” Almeida said. “They can’t claim they didn’t see it.”
Further, Almeida said Exxon Mobil can’t say it didn’t want an employee who had activist experience because the non-LGBT candidate said she worked for a local feminist organization, nor can the organization purport to have engaged in political bias because the candidates have left-leaning resumes.
The result of the testing uncovering apparent anti-gay basis is consistent with a 2011 study at Harvard University that found LGBT applicants were 40 percent less likely to be granted an interview than a straight applicant.
The lawsuit was filed a week before the shareholders at Exxon Mobil are set to consider a resolution from New York State Comptroller Thomas DiNapoli, whose state owns considerable shares in the company, to put in place an LGBT non-discrimination policy. The resolution has come up repeatedly over the years and each time has failed, including last year, when it won support from only 20.6 percent of shareholders.
To reach a settlement in the case, Almeida said he’s asking Exxon Mobil to adopt a company-wide LGBT non-discrimination policy and train its workers across the country on implementation.
“We hope that we will shame them into settling this very quickly,” Almeida said. “If they agree to adopting and training HR people on it, we will settle the case as quickly as we can.”
But if Exxon Mobil chooses to fight the lawsuit, Almeida said the case will go into discovery, which means Freedom to Work will subpoena internal documents from the company and depose staffers to expose anti-gay bias in hiring practices.
“No one has ever gotten an inside look as to what their HR professionals think and why they were taught these policies and why they’re existing,” Almeida said. “As the litigation proceeds, we will get to subpoena those internal documents, and we will get to depose the HR professionals and ask them all these questions.”
Charlie Engelmann, an Exxon Mobil spokesperson, said in response to the complaint from Freedom to Work that the company already has policies protecting LGBT workers.
“Exxon Mobil’s global policies and processes prohibit all forms of discrimination, including those based on sexual orientation and gender identity, in any company workplace, anywhere in the world,” Engelmann said. “In fact, our policies go well beyond the law and prohibit any form of discrimination. We are reviewing the complaint filed with the Illinois Department of Human Rights by Freedom to Work, a non-profit organization.”
Despite the response, Almeida pointed out the company made the same assertion last year prior to the failed vote on the non-discrimination policy — only to have it rejected by the U.S. Securities & Exchange Commission.
“Prior to the vote on the resolution, Exxon asked the U.S. Securities & Exchange Commission for permission to stop shareholders from voting on the resolution, based on Exxon’s view that it had already complied with the proposal,” Almeida said. “However, the SEC rejected Exxon’s request, explaining that ‘it appears that ExxonMobil’s policies, practices, and procedures do not compare favorably with the guidelines of the proposal and that ExxonMobil has not, therefore, substantially implemented the proposal.'”
Illinois was one of two states in which Freedom to Work uncovered apparent anti-gay bias in hiring practices. Almeida did the same paired resume testing in Texas and uncovered similar results at Exxon Mobil.
But Texas doesn’t have a statewide LGBT workplace non-discrimination law on which to base a lawsuit, and no federal non-discrimination protections are in place to help LGBT people. The Employment Non-Discrimination Act isn’t law, nor is an executive order in place prohibiting anti-LGBT bias among federal contractors.
Over the past 10 years, Exxon Mobil received more than $1 billion in federal contracts. If President Obama issued a much-sought executive order prohibiting anti-LGBT job bias among federal contractors, Freedom of Work could have asked the Labor Department to take action against the company.
Almeida emphasized that executive order would have provided Freedom to Work the opportunity to take action against the oil company in Texas as well as Illinois.
“If the president had signed the order, we would have filed the testing results from Texas with the Department of Labor and asked them to do an investigation, and asked them to order Exxon-Mobil to adopt an LGBT non-discrimination policy,” Almeida said. “This is an example of how the president’s delay is slowing down civil rights.”
The White House has said it prefers a legislative approach to addressing LGBT workplace discrimination. Shin Inouye, a White House spokesperson, reiterated in response to the lawsuit on Wednesday that he has nothing to say about the executive order.
“Regarding a hypothetical Executive Order on LGBT non-discrimination for federal contractors, I have no updates for you on that issue,” Inouye said.
The lawsuit is novel in another way because with no real persons suffering discrimination, the named plaintiff in the lawsuit is Freedom to Work itself. Most LGBT legal groups, like Lambda Legal, file complaints that name LGBT people who’ve faced discrimination as the plaintiff.
Almeida said organizational plaintiffs are acceptable under Illinois state law as well as alleged discrimination in response to paired resume testing. In the 2000 decision of 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.
Also working with Freedom to Work on the testing was the Equal Rights Center, a D.C.-based advocacy organization, which has experience with resume testing for minority groups.
Donald Kahl, executive director of the Equal Rights Center, explained in a statement the validity of filing employment discrimination lawsuits based on testing and their applicability to LGBT people.
“Based on the Equal Rights Center’s 30 years of testing experience, and nearly 2,000 tests conducted in the last year, our testing methodologies are recognized and accepted by the civil rights community, government agencies, and the courts,” Kahl said. “The type of testing we conducted with Freedom to Work is a critical part of objectively demonstrating why our LGBT community needs and deserves anti-discrimination protections.”
The legal team representing Freedom to Work in the lawsuit is Cohen Milstein Sellers & Toll PLLC, a group that has experience representing women who alleged gender discrimination in employment at the retail giant Walmart Stores, Inc.
As the lawsuit proceeds, Almeida said Freedom to Work will continue testing for anti-LGBT workplace bias at other companies and take action as necessary.
“Our work is not completed,” Almeida said. “We’re going to test other companies, and if we find out about discrimination, we’re going to file additional lawsuits.”
Fred Sainz, vice president of communications for the Human Rights Campaign, said the nation’s largest LGBT group also supports the lawsuit.
“HRC supports efforts to ensure that all LGBT Americans are judged at work based on how they perform, not on who they are,” Sainz said. “Those efforts include advocating for corporate policies, seeking recourse under state and local laws, and of course working to pass ENDA and a federal executive order.”
North Dakota lawmakers okay regulation banning Conversion Therapy
This rule change will stop the vast majority of mental health providers in North Dakota from subjecting LGBTQ youth to conversion therapy
BISMARCK, ND. – The North Dakota House Administrative Rules Committee voted 8-7 on Tuesday, June 8, to authorize the rule proposed by the North Dakota Board of Social Work Examiners, implementing new regulations prohibiting licensed social workers from subjecting LGBTQ youth to the widely discredited practice of conversion therapy.
The North Dakota Board of Social Work Examiners, which oversees licensing for social workers in the state, created the new rule which states that “it is an ethical violation for a social worker licensed by the board to engage in any practices or treatments that attempt to change or repair the sexual orientation or gender identity of lesbian, gay, bisexual, transgender, and questioning individuals.”
The West Hollywood based Trevor Project, the world’s largest suicide prevention and crisis intervention organization for lesbian, gay, bisexual, transgender, queer & questioning (LGBTQ) young people, had worked with Democratic House Minority Leader Rep. Josh Boschee, the National Association of Social Workers ND Chapter, the North Dakota Human Rights Coalition, and local advocates like Elizabeth Loos to advance these critical protections for LGBTQ youth.
“This rule change will stop the vast majority of mental health providers in North Dakota from subjecting LGBTQ youth to the dangerous and discredited practice of conversion therapy. This practice is not therapy at all— it’s abusive and fraudulent,” said Troy Stevenson, Senior Advocacy Campaign Manager for The Trevor Project. “There is still more work to be done in North Dakota, but this bold action will help save young lives. The Trevor Project is committed to an every state strategy to protect LGBTQ youth from conversion therapy and North Dakota has proven that progress is possible anywhere.”
“Thank you to the North Dakota Board of Social Work Examiners for restricting licensed social workers in North Dakota from being able to practice conversion therapy! LGBT North Dakotans, especially youth, are safer now as you hold licensees responsible to the NASW Code of Ethics,” said Minority Leader Boschee.
The proposed ban on therapist-administered conversion therapy in North Dakota was met with opposition by several of the committee’s most socially conservative members, the Grand Forks Herald reported.
Rep. Dan Ruby, R-Minot, told the paper that he worries the new prohibition is limiting because it would prevent people seeking “some kind of treatment” from getting help. Bell said the rule is written so clients who are LGBT or questioning their sexual orientation or gender identity are not inhibited from seeking care.
Rep. Bernie Satrom, R-Jamestown, said he’s concerned the rule would interfere with religious counseling, adding “there are some cases where people want to change.”
“There are licensed counselors that are also Christians, and basically my concern in all of this is that we’re telling the Christian counselors ‘you can be a licensed counselor, but you can’t practice your Christianity,'” Satrom said.
Satrom and West Fargo Republican Rep. Kim Koppelman said approving the social workers’ ban on conversion therapy is outside of the committee’s scope and ought to be scrutinized by the full Legislature.
Boschee, the North Dakota Legislature’s only openly gay member, told the Grand Forks Herald that he was disappointed in some of his colleagues for standing behind the “harmful” practice of conversion therapy and trying to muddy the conversation over what is a simple self-imposed rule for social workers. The Fargo Democrat said he was ultimately pleased that seven lawmakers joined him in upholding the proposed ban.
- According to The Trevor Project’s 2021 National Survey on LGBTQ Youth Mental Health, 13% of LGBTQ youth reported being subjected to conversion therapy, with 83% reporting it occurred when they were under age 18. LGBTQ youth who were subjected to conversion therapy reported more than twice the rate of attempting suicide in the past year compared to those who were not.
- According to a peer-reviewed study by The Trevor Project published in the American Journal of Public Health, LGBTQ youth who underwent conversion therapy were more than twice as likely to report having attempted suicide and more than 2.5 times as likely to report multiple suicide attempts in the past year.
‘We’re still very much in the healing phase’
Saturday marks five years since Pulse nightclub massacre
Saturday marks five years since a gunman killed 49 people inside the Pulse nightclub in Orlando, Fla.
A remembrance ceremony will take place at the site, which is now an interim memorial. A number of other events to honor the victims will take place in Orlando and throughout Central Florida over the coming days.
“We’re still very much in the healing phase and trying to find our way,” Pulse owner Barbara Poma told the Washington Blade on Tuesday during a telephone interview.
The massacre at the time was the deadliest mass shooting in modern U.S. history.
Nearly half of the victims were LGBTQ Puerto Ricans. The massacre also sparked renewed calls for gun control.
Poma told the Blade that she expects construction will begin on a “Survivor’s Walk” at the site by the end of the year. A museum — which she described as an “education center” that will “talk about the history of the LGBT community and its struggles and stripes for the last century or so … about why safe spaces were important to this community” and what happened at Pulse and the global response to it — will be built a third of a mile away.
“We really feel it is important to never forget what happened at Pulse and to tell the story of that,” said Poma.
Poma noted the onePULSE Foundation of which she is the executive director met with representatives of the 9/11 Tribute Museum and the Oklahoma City National Memorial and Museum to discuss the memorial. Poma when she spoke with the Blade acknowledged the plans have been criticized.
“This kind of opposition is not unique to these kind of projects,” she said.
“It’s just important to know that really what we’re trying to do is make sure what happened is never forgotten and those lives were never forgotten,” added Poma.
Poma on Tuesday declined to comment on the lawsuits that have been filed against her, her husband and the onePULSE Foundation in the wake of the massacre.
DeSantis’ anti-LGBTQ policies overshadow anniversary
The Blade this week spoke with Equality Florida CEO Nadine Smith, state Rep. Carlos Guillermo Smith (D-Orlando) and other activists and elected officials in Florida and Puerto Rico who were part of the immediate response to the massacre.
Equality Florida raised millions of dollars for survivors and victims’ families. CEO Nadine Smith on Tuesday told the Blade during a telephone interview that Equality Florida in the massacre’s immediate aftermath pledged to honor the victims “with action by uprooting hatred at its source and from that time we have invested deeply in safe and healthy schools.”
“Schools are a shared cultural experience where the attitudes of ignorance and fear and animosity and violence towards others either get challenged or encouraged,” said Smith. “Five years later I look at how far this work has come and at the same time, I’m very aware of the backlash that we are facing, particularly in our schools with laws targeting trans youth specifically.”
Republican Florida Gov. Ron DeSantis on June 1 signed a bill that bans transgender athletes from participating in high school and college sports teams that correspond with their gender identity. The governor the following day vetoed funding that activists say would have funded programs for Pulse survivors and homeless LGBTQ youth.
Carlos Guillermo Smith, a gay man who represents portions of Orlando, on Tuesday described DeSantis as “callous.”
“The governor’s actions are a reminder that five years after the attack at Pulse nightclub, we have a lot of work to do to push back against homophobia and transphobia,” said Carlos Guillermo Smith. “The Orlando community is very supporting and accepting of the LGBTQ community, but when you see what’s happening at the Governor’s Mansion in Tallahassee, you realize that there’s a lot of work to be done.”
Pedro Julio Serrano, associate director of Waves Ahead, an LGBTQ service organization in Puerto Rico, described the massacre’s impact in the U.S. commonwealth as “permanent in our collective memory.” Serrano also noted violence against trans Puerto Ricans remains rampant.
“We are now the epicenter of anti-trans violence in the U.S. and its territories,” said Serrano. “After five years, we still confront this hatred that doesn’t seem to stop. We will continue to fight until all of us are safe.”
Tony Lima, a long-time Florida-based activist who is currently CEO of Arianna’s Center, an organization that serves trans women of color in Florida, the South and Puerto Rico, helped organize vigils and blood drives in the days after the massacre.
“We knew how important it was to aid our family in Orlando in this immediate crisis,” Lima told the Blade on Monday. “Orlando and South Florida are intrinsically connected. We often share resources in nightlife, events, advocacy and a lot of the same people … so I think there was a natural synergy there.”
Lima, like Nadine Smith and Carlos Guillermo Smith, sharply criticized DeSantis for signing the anti-trans bill and for vetoing funds for Pulse survivors and homeless LGBTQ youth. Lima also lamented the lack of progress on gun control.
A gunman on Feb. 14, 2018, killed 17 people at Marjory Stoneman Douglas High School in Parkland, Fla. Lima told the Blade there have been two deadly mass shootings in South Florida in recent days.
“We have a huge problem when it comes to gun control in this country, and sadly five years later we haven’t made a whole lot of progress,” he said.
Orlando’s support of LGBTQ rights part of ‘bigger call to action’
Felipe Sousa-Lazaballet is the senior specialist for inclusion, diversity and equity for the city of Orlando’s Office of Multicultural Affairs. He is also Mayor Buddy Dyer’s LGBTQ liaison.
Orlando City Hall on June 1 raised the Pride flag in commemoration of Pride month.
Sousa-Lazaballet noted the fountain in Lake Eola Park in downtown Orlando was the colors of the trans Pride flag in commemoration of the International Transgender Day of Visibility. Orlando in 2019 became the first city in Florida to include National LGBT Chamber of Commerce-certified businesses in its municipal contracting and procurement programs.
“All of that is part of that bigger call to action, which is we want to honor the 49,” said Sousa-Lazaballet. “But we also want to with action by making the city an even more welcoming place for all.”
Sousa-Lazaballet, Carlos Guillermo Smith and Nadine Smith all told the Blade the way that Orlando, Central Florida, the country and the world responded to the massacre remains a source of pride.
“I think about how many messages there were in the aftermath that called on the worst instincts in people to be fearful of each other, to hate people as a group, to cower and to hide and I will never forget and have been changed by the Orlando community, how the nation and in fact globally people responded to the absolute opposite,” said Nadine Smith. “That is a light that I hold on to.”
Poma echoed Nadine Smith.
“We hope that our goal is to create that beacon of light that can come out of such darkness,” said Poma. “Darkness is a really dangerous place to get stuck in and so while we all wish what happened on June 12 never happened, it did and it’s now our moral and social responsibility to do something with that and that for me is creating light and change from what we all endured.”
Senate passes bill designating Pulse as a national memorial
“The tragedy at Pulse rocked our community and served as a reminder of the work we have to do to uproot hate and bigotry.”
WASHINGTON – In a rare bipartisan move, a bill that designates the former Pulse nightclub in Orlando, Florida a national memorial was passed by unanimous consent in the U.S. Senate Wednesday.
Florida’s two U.S. Senators Marco Rubio (R-FL) and Rick Scott (R-FL) introduced Senate Resolution 265 recognizing the fifth anniversary and honoring the 49 victims of the mass shooting attack on the Pulse Nightclub June 12, 2016.
Companion legislation authored by California U.S. Senator Alex Padilla (D-CA), and also Congressman Darren Soto’s (D-FL) House Resolution 49 that passed by voice vote on May 13 was also passed by the Senate.
“The tragedy at Pulse rocked our community and served as a reminder of the work we have to do to uproot hate and bigotry. We’re proud of the bipartisan coalition of Florida Congressional leaders for leading the effort to recognize this hallowed ground as a national memorial site.,” Brandon J. Wolf, the Development Officer and Media Relations Manager for LGBTQ advocacy group Equality Florida and a Pulse survivor told the Blade. “Our visibility matters. May the 49 lives stolen never be forgotten. And may we always honor them with action.”
Wolf was inside the club at the time of the shooting and lost his two best friends, Juan Ramon Guerrero and Christopher Andrew (Drew) Leinonen, who were among the 49 murdered during the rampage. Wolf had managed to escape but the event has forever left him scarred.
Since that terrible night Wolf has been a force for advocacy in gun control and LGBTQ equality rights and is a nationally recognized leader in those endeavors to include by President Joe Biden.
“Pulse is hallowed ground and what happened on June 12, 2016 must never be forgotten. ” Wolf added.
Florida’s Senator’s both released statements:
“The terrorist attack at Orlando’s Pulse nightclub was a heinous act of violence and hatred against members of the LGBTQ community,” Marco Rubio said. “Forty-nine innocent lives were lost on that horrific day. As the fifth anniversary approaches, we must continue to honor the memory of those who were taken far too soon. And while work still remains to root out evil, I am inspired by Orlando’s continued resiliency, pride, and strength.”
Rick Scott, who was Florida’s governor at the time of the mass shooting said, “Nearly five years ago today, our state, nation, the City of Orlando, and Hispanic and LGBTQ communities were attacked, and 49 innocent and beautiful lives were lost. It was an unspeakable tragedy,” he said.
“An evil act of terrorism designed to divide us as a nation and strike fear in our hearts and minds. But instead, we came together, and supported each other through heartbreak and darkness, to preserve and rebuild. Today, we still stand strong, together, to remember the 49 young lives lost that tragic day and honor their memory with passage of our resolution and our bill to establish the ‘National Pulse Memorial.’ It is my hope that this memorial will forever serve as a tribute to the victims and a reminder for us all to always stand for love and kindness over hate and evil in this world.”
Although the United States Senate marked the upcoming fifth anniversary by honoring the victims and shooting survivors with passage of the legislation which now goes to President Joe Biden for his signature, in Florida, Repuiblican Governor Ron De Santis has taken a different tack.
Last week, DeSantis vetoed funding for LGBTQ programs from the state budget including money earmarked for mental health programming to support survivors of the Pulse Massacre, to house homeless LGBTQ children, and for Orlando’s LGBTQ Community Center.
These actions following his signing a bill on June 1, the start of LGBTQ Pride month- an education bill amended to include a previous stand alone bill, specifically targeting transgender girls and young women, banning them from playing on female sports teams.
“Let’s be clear about what this is: Governor DeSantis has declared war on Florida’s LGBTQ community.” said Wolf. “Before the 2019 Remembrance Ceremony, Governor DeSantis stood on hallowed ground, steps from where I escaped the building in 2016, and promised me that he would always support those of us impacted by the Pulse nightclub shooting. Today, almost two years later to date, he vetoed mental health services for us. I will never forget.”
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