A complaint alleging anti-gay bias in hiring practices at oil-and-gas giant ExxonMobil can move forward now that the Illinois Human Rights Commission overturned a lower body’s decision to dismiss the case.
In a decision dated July 14 and obtained Tuesday by the Washington Blade, the Illinois Human Rights Commission — a 13-member body that determines whether unlawful discrimination has occurred under Illinois state civil rights law — remanded the case back to the Illinois Department of Human Rights, which had thrown out the case in January on the basis of lack of jurisdiction.
“The Respondent’s dismissal of Freedom to Work’s charge is VACATED and Freedom to Work’s charge is REINSTATED and REMANDED to the Respondent for FURTHER INVESTIGATION and other proceedings to consistent with this Order and the Act,” states the order, which was signed by Illinois Human Rights Commission Executive Director N. Keith Chambers.
In May 2013, Freedom to Work filed the complaint alleging anti-gay bias at ExxonMobil in hiring practices 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 did not.
After 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. The relief sought by Freedom to Work includes a change in ExxonMobil’s equal employment opportunity policy to enumerate protections based on sexual orientation and gender identity as well as attorney’s fees.
Although the Illinois Department of Human Rights dismissed the case on the basis of no employer-employee relationship between Freedom to Work and ExxonMobil, the order indicates that both Freedom to Work and the department later petitioned the Illinois Human Rights Commission to remand the case so a thorough investigation could proceed.
The petition from the Illinois Department of Human Rights attached to the order also indicates that ExxonMobil denies that it refused to offer the fictitious more-qualified LGBT applicant the job based on anti-gay bias.
Peter Romer-Friedman, counsel at Freedom to Work and attorney at Cohen Milstein Sellers & Toll PLLC, say now that the case has been remanded, ExxonMobil will have to explain why it elected to hire the less-qualified straight candidate.
“We are relieved but not surprised by the state agency’s decision that Freedom to Work and other civil rights groups have the right to challenge unlawful discrimination, including Exxon’s sexual orientation discrimination,” Romer-Friedman said. “This decision means that Exxon will have to answer tough questions about why it treated a well-qualified LGBT applicant far worse than a straight applicant who had lesser qualifications. The decision also paves the way for other non-profit groups to enforce civil rights laws.”
Sabrina Miller, an Illinois Department of Human Rights spokesperson, said it’s unlikely any final decision will be made in the case prior to the end of summer.
The order affirms that Seyfarth Shaw, a Chicago-based international law firm, is handling defense of ExxonMobil in the case. The lawfirm didn’t respond to the Blade’s request for comment on whether it would continue to fight the charge of discrimination.
Scott Silvestri, an ExxonMobil spokesperson, said Freedom to Work’s complaint is “baseless and without merit” and denied his company engaged in anti-LGBT bias in its hiring decision.
“Sexual orientation played no role in the hiring decision,” Silvestri said. “ExxonMobil has a longstanding policy that strictly prohibits any form of discrimination by or toward employees, contractors, suppliers and customers in any ExxonMobil workplace. Our global, zero-tolerance policy applies to all forms of discrimination, including discrimination based on sexual orientation and gender identity.”
Although the Human Rights Campaign told the Blade in 2013 that a lawfirm representing ExxonMobil in an anti-gay bias case would be docked points on its Corporate Equality Index, the nation’s largest LGBT group has taken no action after the firm in this case was revealed to be Seyfarth Shaw, saying attorneys have duties to represent clients in unpopular situations. Chris Carolan, an HRC board member, works as a partner at Seyfarth Shaw.
The relief sought by the complaint will likely come about in any event now that President Obama has signed an executive order barring federal contractors from engaging in anti-LGBT discrimination. Once it takes effect as anticipated early next year, ExxonMobil, which has received more than $1 billion in federal contracts in the past decade, must have LGBT protections deemed satisfactory by the Labor Department if it wants to continue to do business with the U.S. government.
Tico Almeida, president of Freedom to Work, predicted ExxonMobil will be “dragged kicking and screaming” this year into adopting workplace protections for its LGBT employees — either because of his organization’s complaint or Obama’s executive order.
“This oil giant has a lot to lose here, and it should be clear that the clock is ticking and it’s now time to update Exxon’s policies to give LGBT Americans a fair shot on the job,” Almeida said.
[UPDATE: In a report in the Associated Press, ExxonMobil spokesperson Alan Jeffers is quoted as saying his company will “comply with all governmental laws,” but wouldn’t say if that meant changing the formal policy’s language.]