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Seyfarth Says Yes To Defense Of Anti-Gay Bias Case

Tico Almeida

[E]ven the most disgusting criminals should have access to counsel when they violate the law, and Exxon’s shareholders will now pay big bucks for Seyfarth’s lawyers, who are probably some of the most expensive corporate defense lawyers in the country. But I don’t think there’s any need for Seyfarth to run up their billable hours since Freedom to Work would like to settle the case today.

Tico Almeida, founder and president of Freedom to Work, commenting on Seyfarth Shaw’s decision to defend a case alleging anti-gay bias at Exxon Mobil — one of the few Fortune 500 companies that lacks a written nondiscrimination policy prohibiting discrimination on the basis of sexual orientation.

(Will Seyfarth come to regret this case? Let’s discuss….)

Here’s more about the matter from the Washington Blade:

Seyfarth Shaw is representing oil-and-gas giant Exxon Mobil against charges of alleged anti-gay bias in hiring practices, according to the LGBT group Freedom to Work.

Tico Almeida, president of Freedom to Work, told the Washington Blade on Thursday night the Chicago office of Seyfarth Shaw elected this month to represent Exxon Mobil in the lawsuit, which was filed by his organization and is pending before the Illinois Department of Human Rights….

Freedom to Work filed the lawsuit against Exxon Mobil in May after conducting a test in which it sent two fictitious resumes for a job opening at the company in Illinois. One was from a more qualified applicant who outed herself as LGBT on her resume; the other was a less qualified applicant who gave no indications about her sexual orientation or gender identity. The less qualified non-LGBT applicant received multiple callbacks, the more qualified LGBT applicant received nothing.

Regarding his reference to settling the case, Almeida isn’t interested in monetary recovery. He’d be happy with Exxon Mobil adopting a policy prohibiting discrimination against LGBT employees:

“In fact, one settlement option would be for Exxon to copy and paste Seyfarth’s own LGBT workplace policies, which have previously earned the lawfirm a 100 percent LGBT rating from the HRC,” Almeida said. “Exxon could also copy and paste the Chevron LGBT workplace policy, and we would accept that as part of the settlement.”

Alas, gasoline going back to $3 a gallon is probably more likely to happen than Exxon adopting such a policy, at least willingly. From a piece that James Stewart wrote for the New York Times:

[A]s social attitudes and other corporations’ policies on the subject of gay rights have changed drastically, Exxon Mobil has moved steadily further from the mainstream, even within the energy sector. According to the Human Rights Campaign, 88 percent of Fortune 500 companies have adopted written nondiscrimination policies prohibiting harassment and discrimination on the basis of sexual orientation, as have all the major integrated oil companies that compete with Exxon Mobil.

As Stewart observed, Exxon’s policy (or lack thereof) “seems to be hurting the company with gay and lesbian customers and employees.” Could handling this controversial case hurt Seyfarth similarly?

As we noted last year, Seyfarth enjoys a 100 percent rating on the Human Rights Campaign’s Corporate Equality Index, which measures employers on their commitment to LGBT equality. Could this case put Seyfarth’s perfect score in jeopardy? Quite possibly, according to the Blade:

Michael Cole-Schwartz, a Human Rights Campaign spokesperson, said his organization would dock a hypothetical law firm for representing Exxon Mobil in a case alleging anti-gay bias at the company.

“Yes, we would and have done so in the past,” Cole-Schwartz said. “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.”

After Foley partner Cleta Mitchell, whom I once dubbed “an anti-gay gay icon,” stopped representing the National Organization for Marriage (NOM), the firm’s Corporate Equality Index score skyrocketed.

UPDATE (8/25/2013, 10 a.m.): A commenter offers this clarification about Cleta Mitchell:

You got the Foley & Lardner story a little wrong. Cleta Mitchell did not quit working for NOM. Because of the controversy that arose from her representation of NOM, Foley devised a policy that any attorney that takes on work either for or against gay marriage may not invoke Foley’s name as a firm, but may still take on such work in their personal name. Foley didn’t force Mitchell to quit representing NOM — it merely won’t let attorneys represent either side of the gay marriage issue using the firm’s name.

Foley isn’t the only Biglaw firm that has ended a controversial client relationship under pressure from the LGBT community. Recall that King & Spalding famously dropped its DOMA defense, even though that move led former Solicitor General Paul Clement to leave K&S for the Bancroft boutique.

Speaking of Bancroft, that’s the kind of firm that would be better situated to defend a case like Freedom to Work’s. As Tico Almeida notes, Exxon Mobil is entitled to representation, but it might be better off with a boutique instead of Biglaw. The quality of lawyering would be just as high, but the risk of unpleasant entanglement would be lower.

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. 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.

As word gets out about its involvement in the case, will Seyfarth Shaw stand stalwart in its defense of Exxon Mobil? Stay tuned.

Chicago firm to defend Exxon Mobil against charges of anti-gay bias [Washington Blade]
Exxon Defies Calls to Add Gays to Anti-Bias Policy [New York Times]
Shareholders of Exxon Mobil Reject Gay Discrimination Ban [Associated Press]

Earlier: Cleta Mitchell of Foley & Lardner: An ‘Anti-Gay’ Gay Icon?
The Best Law Firms for LGBT Lawyers
Paul Clement Quits King & Spalding After K&S Moves to Drop DOMA Defense

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