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Critics: Court Nominee’s Record Shows Pro-Employer Stance With AM-Thomas Nomination, Bjt

July 2, 1991

NEW YORK (AP) _ Supreme Court nominee Clarence Thomas came under stinging criticism as head of the government’s anti-discrimination agency for policies opponents said undermined the rights of older workers and women.

A study of Thomas’ record as chairman of the Equal Employment Opportunity Commission and his rulings since becoming a federal appeals court judge indicates a pro-employer stance on several issues.

″I don’t think he has ever demonstrated a great concern about employee rights in any way, shape or form,″ said Winn Newman, a Washington lawyer who has represented organized labor and workers in discrimination cases.

Thomas chaired the EEOC from his appointment by President Reagan in 1982 until 1989, when he was nominated to the federal appeals court in Washington.

His tenure was marked by run-ins with lawmakers over EEOC policy. Critics accused him of lax investigations, failure to protect older workers and outdated interpretations of anti-discrimination laws.

Women Employed, a Chicago-based advocacy group, said that under Thomas the EEOC backlog of complaints swelled, cases took about twice as long to process and settlement rates dropped.

According to the group, 54 percent of cases were dismissed as having ″no cause″ when Thomas left, compared with under 30 percent in 1982.

Several labor rights activists said the EEOC under Thomas sharply reduced class-action lawsuits seeking broad change in favor of individual cases, which are more time consuming and less comprehensive.

Senior citizens groups attacked Thomas for EEOC rulings they argued ran counter to the 1967 Age Discrimination and Employment Act.

″Where the man was given a law to administer, he clearly failed simply because of his bias for employers against a class of workers,″ said Dan Schulder, legislative director for the National Council of Senior Citizens.

Under Thomas, the EEOC allowed the statute of limitations to lapse on an estimated 13,000 age discrimination cases. Thomas blamed Congress for underfunding the agency. Congress later intervened to allow the workers to refile their claims.

The EEOC during his term allowed companies to sever pension credits and contributions to workers who remain past retirement age. Congress later prohibited such action.

The commission also adopted rules that would have helped employers extract waivers of rights to sue from older workers. Congress later passed a law prohibiting that too.

The EEOC made training programs exempt from coverage under the age discrimination act, allowing employers to bar workers above a certain age from joining apprenticeships. The policy still stands.

Among rulings under Thomas relating to women in the workplace, the EEOC allowed employers to release the names of individuals who filed successful sex discrimination cases. It also sought to allow employers to bump a worker who received a job as a result of discrimination by a company.

The EEOC encountered criticism in 1985 when it rejected the notion of comparable worth, which holds that men and women should receive the same pay for different jobs that require equal training and responsibility.

Thomas rejected comparable worth as a method of determining sex-based wage discrimination, even though it was endorsed by a 1981 Supreme Court decision. Women Employed said the number of EEOC lawsuits in equal pay cases - same pay for the same job - dwindled to 12 in Thomas’ last two years.

Thomas appeared numerous times before congressional committees hearing discrimination issues, often having contentious exchanges with lawmakers. He was prodded by congressmen to act on languishing age and equal pay cases.

One embarrassment was a 1988 episode of the ABC-TV show ″20-20″ in which an EEOC official was secretly taped saying companies should be allowed to replace older workers with younger ones to save money. The episode focused on the EEOC’s failure to sue Xerox Corp. over alleged age-related firings.

The Supreme Court in April refused to kill a class-action lawsuit by 1,300 former Xerox workers.

″In a lot of areas it was clear (the EEOC) was more pro-business, definitely less affirmative action,″ said Stuart Weisberg, general counsel of the House employment and housing subcommittee, which questioned Thomas several times.

While his judicial record is slim - Thomas has been involved in just 27 decisions - several cases appear to lean toward government or business.

Earlier this month, Thomas upheld Federal Aviation Administration approval of plans for an airport in Burlington, Ohio, over allegations by residents that the FAA violated environmental laws by not considering alternate sites.

In another case, Thomas voted to uphold Labor Department approval of a mine operator’s safety plan over union complaints the plan would increase exposure to dust and make escape more difficult. The court said the government balanced the union’s safety concerns with the mine operator’s opinion of safety gain.

Last year, Thomas voted to uphold a lower court ruling that the merger of two drilling rig makers would not substantially reduce competition, as the government had argued.

Thomas last year voted to reduce a $10 million damage award in a false advertising case pitting Alpo Petfoods Inc. against Ralston Purina Co. He argued the defendant’s lack of scientific backing for claims and attempts to destroy evidence did not amount to bad faith.

The current EEOC chairman, Evan J. Kemp Jr., defended his predecessor, saying Thomas turned around the agency, computerizing commission records and increasing staff accountability.

″He made the EEOC a first-rate law enforcement agency where people were proud to say they worked,″ Kemp said Tuesday after addressing a conference in Philadelphia.

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