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Thomas Presided Over Shift in Policy at EEOC, Records Show

July 25, 1991 GMT

WASHINGTON (AP) _ Clarence Thomas is unique among recent Supreme Court nominees because of the detailed record he established as head of a federal agency, the Equal Employment Opportunity Commission.

An examination of that record, which will be scrutinized and debated in Senate confirmation hearings, reveals that Thomas was more than merely a controversial critic of most affirmative action methods.

During his eight-year tenure, critics say the agency charged with enforcing employment discrimination laws shifted its focus away from class action cases aimed at providing remedies to large groups of people, to a more narrow emphasis on individual cases remedying specific acts of discrimination.

Thomas himself acknowledged many age discrimination claims were allowed to expire through bureaucratic inaction, though the number of lapsed cases remains in dispute.

″While he was in federal government he took a view of civil rights laws that was so narrow as to be ineffective,″ charged William L. Taylor, a veteran civil rights attorney. ″He refused to recognize the affirmative role of the government in protecting against discrimination.″

Thomas is not without defenders, however.

At his 1990 judicial confirmation hearings, Frank Quevedo, past chairman of the board of the Mexican-American Legal Defense and Education Fund, said Thomas ″made this agency responsible to the concerns of Hispanics, in word and in deed.″

Arthur Green, a Connecticut rights official who represented the International Association of Official Human Rights Agencies, said Thomas encouraged state and local organizations that receive discrimination complaints and offered them training in pursuing cases of systemic bias.

As a conservative black leader, Thomas drew criticism from liberals and civil rights advocates for opposing affirmative action preferences for minorities - programs he said in 1987 ″create a narcotic of dependency.″

″Congressional and private studies have shown that Clarence Thomas on many occasions acted inconsistently with civil rights laws passed by Congress and interpreted by the Supreme Court,″ said Ralph Neas, head of the Leadership Conference on Civil Rights, a lobbying group.

Thomas also enraged some Democratic members of Congress, who held several hearings during the Reagan administration in which Thomas was compelled to admit error or promise changes. Together with his confirmation hearings for the court of appeals in 1990 and for renomination to the EEOC post in 1986, those hearings produced volumes of testimony and analysis.

Some of the strongest complaints about Thomas centered on these matters:

- Age discrimination. More than 13,000 age discrimination claims were allowed to lapse by failure of the EEOC to act within the time limits, according to congressional committees. Congress later passed a bill reinstating the rights of those workers to sue.

But even after that temporary action, age cases continued to languish, said Dan Schulder of the National Council of Senior Citizens. He said another 2,000 or so cases lapsed as Thomas’ tenure neared an end.

Congressional committees accused Thomas of consistently underestimating the number of cases affected - first estimating the number as less than 100. An unreleased report by the staff of the Senate Special Committee on Aging in 1988 charged ″a continuing pattern of mismanagement at the highest levels of the EEOC.″

Sen. David Pryor, D-Ark., who later became chairman of that panel, opposed Thomas’ nomination to the Court of Appeals in 1990. He said Thomas ″was very, very uncooperative″ with the panel, prompting it to issue subpoenas of EEOC records that revealed the number of lapsed cases.

″Had it been 10 cases or 20 cases, that might have been something different,″ Pryor said at the time. ″But there were 15,000 charges which may have lapsed. ... These 15,000 charges representing the rights of American citizens were denied and snuffed out, literally snuffed out, by a bureaucracy that was run by Clarence Thomas. That is too much for me to overlook.″

At a House hearing in 1988 Thomas acknowledged allowing 900 cases to expire and said the failure ″disgraces the agency. ... We deserve harsh criticism for this occurrence. It will not happen again.″

At his 1990 confirmation hearing, Thomas accepted responsibility for the 900 cases but denied he failed to cooperate with Congress. He said he did not know where the larger numbers came from.

- Court precedents. Critics charge Thomas failed to follow Supreme Court precedents in seeking remedies for victims of job discrimination. A House committee reported in 1986 that in an effort to settle cases, Thomas’ agency abruptly stopped seeking remedies such as goals and timetables for increased minority employment. Also, his agency directed regional attorneys not to enforce goals and timetables in existing court settlements.

In 1985, Thomas called the use of goals and timetables a ″fundamentally flawed approach.″

Critics said he had wrongly interpreted a Supreme Court case as justification, and that three subsequent court decisions made clear that goals and timetables could be used as remedies for job discrimination. In 1986, at Senate hearings on his reconfirmation in the EEOC job, Thomas acknowledged the court had reaffirmed use of goals and timetables and promised to follow that policy.

- Investigations and enforcement. The General Accounting Office, the investigative arm of Congress, concluded in 1988 that regional EEOC offices were not fully looking into cases. It said 41 percent to 82 percent of the cases closed by those offices, with no evidence of discrimination found, had not been fully investigated.

Thomas charged the GAO report was politically motivated. He said it ″trivializes civil rights enforcement to a level commensurate with widget making.″

The agency’s enforcement record came under criticism from others. Women Employed Inc., a Chicago research and advocacy group that has studied the EEOC, complained that enforcement deteriorated under Thomas.

When he began with the agency, it said, the typical case took three to six months to close, nearly one-third were settled satisfactorily to both sides, and less than one-third were told they had no case. Of those litigated, two- thirds were class-wide cases with implications for a broad group of people.

But by the time he left last year, said Nancy Kreiter, the group’s research director, things had changed. The average case took 10 months to close, fewer than 14 percent had reached settlement, over half of the complainants were told they had no cause, and fewer than 20 percent of the cases litigated were class actions.

The record brought a strong condemnation from Herbert Hill, who for 27 years was labor director for the NAACP and now is professor of industrial relations at the University of Wisconsin. In a 1987 letter to Thomas, Hill said he had crippled the commission by focusing on individual random acts of bigotry while ignoring systemic patterns of discrimination.

″Because you and other commissioners reject the idea that Title VII (of the Civil Rights Act of 1964) was meant to be an instrument of social change, you have transformed the EEOC into a claims adjustment bureau,″ Hill said.

Thomas, asked about Hill’s views at his Senate hearing in 1990, dismissed him as a frequent critic. ″I would expect criticism from him,″ he said.