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Memo Shows Thomas Favored Easing Employer Liability in Harassment Cases With PM-Thomas Bjt

October 9, 1991

WASHINGTON (AP) _ Supreme Court nominee Clarence Thomas recommended more than a decade ago that federal guidelines on sexual harassment go easier on employers, according to papers released by a group opposing his nomination.

The Alliance for Justice released copies Tuesday of documents it said were written by Thomas in late 1980 while he was serving on the Reagan transition team. It said the documents had been made public previously but were being released anew in light of allegations of sexual harassment against Thomas.

George Kassouf, spokesman for the group, said there was no evidence Thomas acted on his own recommendation once he became chairman of the Equal Employment Opportunity Commission.

Ricky Silberman, EEOC vice chairman and an advocate of Thomas, dismissed the disclosure as ″silly″ and said Thomas had worked to secure strong laws on sexual harassment.

In a memorandum dated Dec. 22, 1980, Thomas criticized EEOC guidelines on sexual harassment in the workplace under Title VII of the Civil Rights Act. The guidelines had been put forward on Nov. 10 of that year by the Carter administration and said that an employer could be held responsible for acts of sexual harassment in the workplace.

Thomas wrote that those guidelines ″expand the common law″ used by the agency. He said the guidelines eliminate the requirement that activities of the supervisory personnel be ″within the scope of employment″ and ″go so far as to state that even if the employer forbids such action, it will still be responsible.″

Thomas recommended ″that these guidelines be re-examined and that the liability of the employer be related to its participation in the alleged sexual harassment.″

Thomas wrote the memo to the head of the transition team, according to copies of the memorandum distributed by the Alliance for Justice. The documents were first reported by a New York radio station, WFUV.

Thomas was named chairman of the commission in 1982, and served there for two terms before being named to the Court of Appeals by President Bush.

″We can only say before he was chairman, but while a member of the Reagan transition team, he advocated limiting the scope of employer liability under the sexual harassment guidelines,″ Kassouf said.

In addition, the Alliance said Thomas joined in a report by the transition team stating that vagueness of the guidelines ″has undoubtedly led to a barrage of trivial complaints against employers around the nation.′

″The elimination of personal slights and sexual advances which contribute to ‘an intimidating, hostile or offensive working environment’ is a goal impossible to reach,″ the report said. ″Expenditure of the EEOC’s limited resources in pursuit of this goal is unwise.″

Silberman, vice chairman of the EEOC, asked to comment on the memos, said that she had not seen them. But she said Thomas had advocated the plaintiff’s case in a 1986 Supreme Court case that ″affirmed those guidelines and established the law on sexual harassment.″

″They’re silly,″ Silberman said. ″It is another example of bringing up some little bit of trivia from 10 years ago when the record is absolutely clear that it is because of Clarence Thomas that women have the protection of the law with respect to sexual harassment.″

Kassouf said the documents were given to the Alliance but he declined to say by whom. He said there was ″no question about their authenticity.″

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