A Question of Fairness

Clarence Thomas, a black, is Ronald Reagan's chairman of the Equal Employment Opportunity Commission. He walks a lonely road, not really agreeing with conservatives or liberals.

Clarence Thomas has resolved to play by the rules. Once again one sees the boy on the porch, the respect for method and procedure. Thomas is consistent. Because the courts in the past have mandated goals, timetables, and quotas, and because these are therefore the law of the land, Thomas's EEOC continues to enforce (though it may occasionally challenge) such decisions. This stance has sometimes left Thomas isolated within the Reagan Administration. But when it comes to new business before the commission, there is little in Clarence Thomas's record with which a right-wing Administration could find fault.

In "fiscal year" 1980 (October 1, 1979, to September 30, 1980) the EEOC was settling 32.1 percent of the cases that it closed, whereas the rate was 13.6 percent in the first half of 1986. The proportion of cases in which the EEOC finding was "no cause" (for a lawsuit) increased from 28.5 percent to 56.6 percent over the same period. A total of 22.3 percent fewer cases were filed in court in 1985 than in 1981. The decline in the number of cases pleased Thomas. He had turned the agency's attention away from cases based on statistical evidence of discrimination. Thomas was sensitive to reports that white managers often feel they cannot find enough qualified minority candidates. Perhaps an employer in the Southwest fires more Hispanics and women simply because he made an effort to hire them in the first place; the women and Hispanics who make the most of the open door will have a job. Those who can't do the job will be fired. To sue an employer because he keeps the door open to people who may be less educated and have little work experience would be to discourage him from giving those people a chance.

THOMAS's tenure at the EEOC has always been rocky, but it has been rocky for different reasons at different times. His first task was simply getting a hold on an agency with 3,100 employees and forty-eight local offices. By all accounts the agency Thomas inherited was administratively disheveled, with a long backlog of discrimination cases. Thomas seems to have been happy with unpublicized bureaucratic chores, happy to be left to himself. On his way into work every day he would have his driver stop at a Catholic church, where he would spend a few minutes alone in prayer. He does not attend church on Sundays. ("God is all right," he says. "It's the people I don't like.") Thomas rarely spoke with the press. He worked privately, almost anonymously, letting the Justice Department and the White House make political pronouncements on civil-rights policy. In the Administration, Thomas was often referred to as "the other Clarence," distinguishing him from the more visible Clarence Pendleton, at the Civil Rights Commission. As one of the very few prominent blacks in the Reagan Administration, he was criticized internally for his initial lack of a public role.

Once, during lunch at the White House mess, William Bradford Reynolds, the assistant attorney general for civil rights, was loudly urging him to be more aggressive. Thomas snapped back, "Don't tell me what to do, Brad. All I have to do is die and stay black."

If Thomas hoped to sit out the war of words between the Reagan Administration and the nation's leading civil-rights groups, he was only partially successful. Criticized by black leaders as an Uncle Tom, Thomas from time to time struck back. He publicly castigated civil-rights leaders who "bitch, bitch, bitch, moan and moan and whine" about the Reagan Administration. He characterized protests against apartheid in South Africa and against the Administration's policy of "constructive engagement" as less important than efforts at home to improve education for blacks and end poverty and drug abuse among them.

Meanwhile, Thomas found himself in occasional disagreements with other members of the Administration. Thomas freely blamed the Justice Department for setting a "negative agenda" on civil rights during the President's first term. He conceded to me that the Administration "blew it" by supporting tax-exempt status for a segregationist school, Bob Jones University. He stated frankly that he was working with racists, though he claimed that this hardly mattered, since, he said, there are some racists in every Administration. ("Yes, there are a lot of racists in the Administration. So what? There may be more here now, they may be more out front. I don't care. I prefer dealing with an out-and-out racist anyway to one who is racist behind your back.") He opposed Attorney General William French Smith when Smith refused to comply with a twelve-year-old federal law requiring federal agencies to submit annual statistical analyses of the number of minority-group members working in the executive branch. And, with mixed success, he has set himself against Justice Department attempts to overturn certain existing local quota plans for hiring and promotion. At one point in 1984 there was talk within the Administration of forcing Thomas's resignation, or at the very least of nominating a replacement when Thomas's term expired in 1985.

Though it was at first only dimly perceived, however, Thomas was transforming the nature of the EEOC—moving it firmly toward the Reagan right. The fundamental change was in the type of lawsuit that the commission was likely to bring. In the past the EEOC had brought a number of celebrated class-action cases against such major companies as AT&T and General Electric. The agency had alleged historical and widespread discrimination and sought changes in hiring practices, along with back pay for the victims. Those cases ended with multimillion-dollar settlements, and goals and timetables to govern future hiring. Now the EEOC focused on simply enforcing the law in cases brought by individuals who sought to prove specific acts of discrimination. The shift in emphasis fit Administration policy. Fewer class-action suits inevitably meant far less use of goals, timetables, and quotas to remedy findings of discrimination. It also meant fewer attempts to stop employers from giving tests, setting standards, or recruiting in a manner that caused disproportionately low numbers of blacks, women, and other minorities to get Jobs.

Thomas held to his version of fairness: individual victims of discrimination should be helped by the government, but classes of people who theoretically were victimized by the nation's history of racism or sexism should not be helped. Indeed, Thomas viewed with deep misgivings any finding of discrimination based on broad statistics—once the most effective weapon wielded by the EEOC. The commission had for many years used statistics to put employers on the defensive for not hiring minorities or women in proportion to their numbers in the pool of qualified applicants. Statistics shifted the burden of proof from the individual, who was charging discrimination, to the company, which had to prove that it was not discriminating. Statistics had been employed vigorously by the EEOC ever since a favorable 1971 Supreme Court ruling in Griggs v. Duke Power Co.

Soon Thomas began to look at the use of statistics in the EEOC's own Uniform Guidelines on Employee Selection Procedure, which has been used by the courts as an authoritative interpretation of the Civil Rights Act of 1964. In September of 1984 Thomas led the five EEOC commissioners in a vote to review the guidelines, because, in his view, they had become too "rigid." The decision, in favor of review, shook the civil-rights community, which regarded the guidelines as a landmark in equal-opportunity law. It also had reverberations in the corporate world. Lawyers had become accustomed to the Uniform Guidelines as the one and only set of rules for playing the affirmative-action game—for avoiding race- and sex-bias lawsuits brought by the government. The guidelines require that any prerequisite for employment -- a test, an interview, a physical standard, or a performance evaluation -- result in a selection rate for any race, sex, or ethnic group within 20 percent of the selection rate for the group with the highest rate. If a hundred whites apply for a job and sixty are selected, that is a 60 percent hiring rate for qualified white applicants. An employer with forty qualified black applicants would have to hire twenty—a 50 percent hiring rate—to come up with a hiring rate for blacks that is within 20 percent of the hiring rate for whites.

In justifying the review of the guidelines Thomas wrote that they were founded on the premise "that but for unlawful discrimination by an employer, there would not be variations in the rates of hire or promotion of people of different races, sexes, or national origins . . . [The guidelines] also seem to assume some inherent inferiority of blacks, Hispanics, other minorities, and women, by suggesting that they should not be held to the same standards as other people, even if those standards are race and sex neutral." Last year the EEOC completed an internal review of the guidelines, but it has not yet acted on this report.

Thomas was roundly criticized by civil-rights groups for subjecting the guidelines to scrutiny. He cited the all-black basketball team at Georgetown University, a school with an overwhelmingly white student body, as an example of how statistics could mislead. Would anyone, he asked at a congressional hearing, charge that Georgetown was discriminating against white basketball players?

In newspaper interviews Thomas spoke freely of his disdain for the statistical basis of an ongoing EEOC suit, begun before Thomas joined the commission, against Sears, Roebuck & Co. The class-action suit claimed that Sears discriminated against women because it hired a far higher proportion of men than women for sales jobs, even though more women applied for the jobs. Sears, the EEOC claimed, also promoted fewer woman than men to lucrative commissioned sales jobs. The government's suit did not have a single named plaintiff; it relied solely on statistics. Thomas told The New York Times that the statistics didn't prove Sears guilty of discrimination. The disparity in hiring figures between men and women could, he said, be due to cultural differences between men and women, educational levels, commuting patterns, and other "previous events." Lawyers for Sears actually tried to have Thomas testify in their behalf, hoping he would damage his agency's case. However, the judge refused the motion to take his deposition, ruling that what Thomas believed, even as the head of the EEOC, was irrelevant. In February of 1985, to Thomas's satisfaction, the EEOC lost the case. But Thomas has agreed to have his agency file an appeal on the basis of what his lawyers have told him are mistakes made by the trial judge. Thomas told me that he decided to go along with the appeal because if he didn't, "the liberals would be all over me." He does not want it said that he didn't give the case every chance to succeed.

In June of 1985 Thomas removed another potential source of controversy between employers and the government by leading the commissioners to reject the validity of the notion of "comparable worth": the idea that people who are doing different jobs should nevertheless be paid equally if their jobs require comparable effort, responsibility, skill, and training. Traditionally female occupations, such as teaching, could be made to pay the same wage as traditionally male occupations, such as construction. Women's groups have contended that jobs that usually go to men pay more because of the old-fashioned idea that a man is supporting a family while a woman is merely working for pin money, or supplemental income. Thomas countered that Title VII of the Civil Rights Act outlawed disparities in pay only when an employer paid men and women different wages for doing the identical job. The agency's decision closed a potential avenue of redress for women for the remainder of the Reagan Administration.

In July of 1985 five congressmen and three senators, including Senator Edward Kennedy, the ranking Democrat on the Senate's Committee on Labor and Human Resources, asked the General Accounting Office to investigate the EEOC. They were "deeply concerned that the EEOC's ability to effectively attack discrimination in the workplace [had] been diminished by a recent shift in policy which may run counter to the intent of Congress in enacting these remedial statutes. "They insisted that Congress "required an extensive and sustained" effort from the EEOC against the practices that led to discrimination. They complained that their mandate was "being flouted by the commission."

With the arguments between Thomas and his critics growing louder, the EEOC chairman suddenly found himself warmly received at the Justice Department and the White House. He worked closely with Attorney General Edwin Meese in pushing for a change in an executive order that requires federal contractors to show that they have made efforts to hire minorities and women. Meese and Thomas argued that the order amounted to quotas, because contractors who failed to hire minorities and women were given goals and timetables that had to be met under pain of losing government contracts. For the time being the executive order remains in effect, however, because Republican political strategists have judged that deleting all suggestion of quotas from the executive order carries too high a political price.

LAST summer President Reagan nominated Clarence Thomas to a second term as chairman of the EEOC. On August 12, 1986, Thomas won Senate confirmation. The Senate's unanimous vote came a week after a 14-2 vote by the Labor and Human Resources Committee to recommend Thomas for a second term. The two senators who voted against Thomas in committee were Howard Metzenbaum, of Ohio, and Paul Simon, of Illinois. Metzenbaum said he opposed Thomas because "he has not brought [to the EEOC] a vigorous determination to enforce the law. . . . He has failed to show the kind of leadership which the civil-rights community is entitled to." The NAACP and the League of United Latin American Citizens said that Thomas was the key to a Reagan Administration plan to "roll back civil rights."

But the opposition lacked passion. In joint testimony representatives of other major civil-rights and women's rights groups, ranging from the National Urban League to the NOW Legal Defense and Education Fund, said they did not know of any group involved with civil liberties that wanted Thomas reappointed. However, they said, "given this administration's record [we] have no illusions that a nominee committed to strong enforcement would replace [Thomas]. This Hobson's choice dilemma does nothing to quiet our concerns about the management and policy of the EEOC for the past five years." The civil-rights groups seemed reluctant to demand that Thomas be replaced even as they listed his faults. Their hesitancy carried the day and helped to assure Thomas's confirmation. And at the hearings, which were held in July, Thomas stole his opponents' thunder by telling the committee that he had reversed his earlier position and ordered the EEOC's lawyers to resume using goals and timetables against employers found guilty of discrimination. "That's the law of the land, whether I like it or not," he said. When Metzenbaum asked about his personal view of affirmative action, Thomas replied, "Whatever reservations I have are purely personal. They're subversive literature now." When some Democrats suggested that Thomas might be merely saying expedient things on the record while off the record instructing his lawyers not to return to goals and timetables, Thomas privately promised, according to committee members, to send reports twice a year to the Senate on the number and types of cases in which the EEOC makes use of hiring and promotion goals and timetables. Despite such concessions, Thomas retains considerable power to push his agenda at the EEOC—an agenda that amounts to curbing federal intervention.

In mid-September, Attorney General Edwin Meese, Assistant Attorney General for Civil Rights Bradford Reynolds, and Senator Strom Thurmond, the former segregationist from South Carolina, came to the EEOC's offices to swear in Clarence Thomas. It was an unlikely sight—the three white men shaking hands and slapping backs with Thomas. Reynolds had days earlier attacked Supreme Court Associate Justice William Brennan as a man seeking "unlimited judicial power to further a personalized egalitarian vision of society" through racial preferences and a "liberal social agenda." Meese was about to give a speech encouraging politicians to disregard Supreme Court rulings if they felt the rulings were wrong. Clarence Thomas, in his moment of triumph, stood shoulder-to-shoulder with his Administration colleagues. None of the three stayed more than a few minutes at Thomas's celebration. But before he left, Reynolds raised his glass. "It's a proud moment for me to stand here," he said, "because Clarence Thomas is the epitome of the right kind of affirmative action working the right way."

Clarence Thomas flinched. Some of his aides looked down and shook their heads. After all Thomas had been through in defense of the Administration position on civil rights, Reynolds had implicitly dismissed him as an affirmative-action hire. And, worse, Reynolds had thought it a compliment. Thomas showed a look of cold hurt—a look of disgust. He folded his arms across his chest and looked away from Reynolds. By the time Meese had said a few words and Thurmond had sworn him in, an uneasy smile had returned to Thomas's face. A few days later, when I asked about his reaction to Reynolds's comment, Thomas waved his hand, as if swatting away the memory. "I can't pay no attention to Brad," he said.

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