Residents in Mayflower, Arkansas, have recently filed a class-action lawsuit seeking more than $5 million in damages against ExxonMobil, the world’s largest oil company, after a pipeline carrying Canadian crude from Illinois to Texas ruptured, allowing thousands of barrels of heavy crude oil to flow into a residential area. ExxonMobil has claimed that between 3,500 and 5,000 barrels of heavy crude leaked from the ruptured pipeline, however the lawsuit has claimed that more than 19,000 barrels were spilled.
There is yet another recent lawsuit which ExxonMobil has to contend with. This one, however does not involve oil spills.
In December of last year, the gay rights organization Freedom to Work and its founder, Tico Almeida, decided to expose Exxon’s anti-LGBTQ discrimination. Mr. Almeida used a legal strategy of resume audit testing, using two ghost applicants, to expose its anti-LGBTQ bias in hiring practices. Last month, the LGBTQ 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 LGBTQ people.
Jennifer Priston and Michelle Caland are similar in many respects. They both live in Springfield, Ill., attended the same high school and graduated from the same local community college in 2011 after majoring in business administration. Jennifer Priston, however, was a candidate that a higher grade point average, more advanced office skills, a higher ranking previous position with a greater level of responsibility, and a longer work history. However, she was consequently outed as LGBTQ because of her volunteer experience working for the Gay and Lesbian Victory Fund. Michelle Caland, on the other hand, was less qualified in terms of work experience and education, but offered no indication that she was LGBTQ.
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. “We know that they cannot credibly claim that they didn’t receive the LGBTQ 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.” In a press release announcing the complaint, Almedia claimed that, “Exxon broke the law, defies industry standards and continues to betray the American people’s sense of fairness.”
Exxon denies any wrongdoing and said it is reviewing the complaint, which was filed with the Illinois Department of Human Rights. Charlie Engelmann, a spokesman for the company, stated in an email that, “ExxonMobil’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. In fact, our policies go well beyond the law and prohibit any form of discrimination.”
However, for the 14th year in a row, shareholders of ExxonMobil have continuously rejected a proposal which would have added sexual orientation and gender identity to the company’s non-discrimination employment policy. Its current equal opportunity policy states it will provide equal employment opportunity to all individuals regardless of race, color, sex, religion and half a dozen other legally protected statuses, but sexual orientation and gender identity are not mentioned.
Civil rights groups have employed the strategy of resume audit testing with great success for decades, but this lawsuit marks the first time an LGBTQ group has tried it. To reach a settlement in the case, Almeida has said that he is asking Exxon Mobil to adopt a company-wide LGBTQ 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.
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. However, Texas does not have a statewide LGBTQ workplace non-discrimination law on which to base a lawsuit, and no federal non-discrimination protections are in place to help LGBTQ people. The Employment Non-Discrimination Act isn’t law, nor is an executive order in place prohibiting anti-LGBT bias among federal contractors.
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.
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 the validity of filing employment discrimination lawsuits based on resume audit 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-LGBTQ workplace bias at other companies and take action as necessary.