Clarence Thomas on Civil Rights
Limit employer liability for sexual harassment by employees
The Court today manufactures a rule that employers are vicariously liable if supervisors create a sexually hostile work environment, subject to an affirmative defense that the Court barely attempts to define. This rule applies even if the employer has a
policy against sexual harassment, the employee knows about that policy, and the employee never informs anyone in a position of authority about the supervisor’s conduct. As a result, employer liability is judged by different standards depending upon
whether a sexually or racially hostile work environment is alleged. The standard of employer liability should be the same in both instances: An employer should be liable if, and only if, the plaintiff proves that the employer was negligent in permitting
the supervisor’s conduct to occur. I would restore parallel treatment of employer liability for racial and sexual harassment and hold an employer liable for a hostile work environment only if the employer is truly at fault.
Source: Burlington v. Ellerth, 97-569, dissenting opinion
Jun 26, 1998
Employee must prove negligence to sue city for harassment
For the reasons given in my dissenting opinion in Burlington Industries v. Ellerth, ante, absent an adverse employment consequence, an employer cannot be held vicariously liable if a supervisor creates a hostile work environment. Petitioner suffered no
adverse employment consequence; thus the Court of Appeals was correct to hold that the City is not vicariously liable for the conduct of [the petitioner’s supervisors]. Because the Court reverses this judgment, I dissent.As for petitioner’s
negligence claim, I disagree with the Court’s conclusion that merely because the City did not disseminate its sexual harassment policy, it should be liable as a matter of law. The City should be allowed to show either that: - there was a reasonably
available avenue through which petitioner could have complained to a City official
- or that it would not have learned of the harassment even if the policy had been distributed.
- Petitioner would bear the burden of proving the City’s negligence.
Source: Faragher v. Boca Raton, 97-282, dissenting opinion
Jun 26, 1998
Tension between affirmative help and undermining dignity
SENATOR SPECTER: You were quoted in Atlantic Monthly saying, “There is nothing you can do to get past black skin. I don’t care how educated you are, how good you are at what you do, you’ll never know the same contacts or opportunities, you will never be
seen as being equal to the whites.” Why is it that you come down so strongly against any group action? JUDGE THOMAS: I made it clear during my tenure as the Chairman of EEOC that racism and discrimination had to be eliminated. We all have to do as
much as possible to include members of my race, minorities, women, anyone who is excluded into our society.
SPECTER: What is the best way to do it?
THOMAS: You have a tension, you want to do that and, at the same time, you don’t want to discriminate
against others. You want to be fair, at the same time you want to affirmatively include. Whatever we do, we [should] not undermine the dignity, self-esteem and self-respect of anybody or any group that we are helping. That has been central to me.
Source: Senate Confirmation Hearings
Sep 11, 1991
Reaching out to minorities is OK; but no quotas
SENATOR BROWN: One of the charges that has been brought against you in this nominating process is that you benefited by quotas or affirmative action, but do not support them.
The question is directly in entry to Yale, were you part of an affirmative action quota?
JUDGE THOMAS: Senator, I have not during my adult life or during my academic career been a part of any quota. The effort on the part of Yale during my years there was to reach out and open its doors to minorities whom it felt were qualified,
and I took them at their word on that, and I have advocated that very kind of affirmative action and I have done the exact same thing during my tenure at EEOC, and I would continue to advocate that throughout my life.
Source: Senate Confirmation Hearings
Sep 11, 1991
Supports scholarships & internships for minorities & women
When I had the opportunity to establish a program at EEOC that provided scholarships for minorities and women, I did. That program now has about $10 million in endowments. When I had an opportunity to participate in establishing a program here in
Washington for minority interns, I did. I think that it is important for them to be here, to participate in this process, to learn from this process, to grow. I wish that when I was a kid I had had this opportunity also.
Source: Senate Confirmation Hearings
Sep 10, 1991
Hate crimes must be separate crimes, not just for sentencing.
Justice Thomas wrote the concurrence on APPRENDI v. NEW JERSEY on Jun 26, 2000:
Apprendi fired several shots into the home of an African-American family and made a statement that he did not want the family in his neighborhood because of their race. He was charged with possession of a firearm for an unlawful purpose, which carries a prison term of 5 to 10 years. The count did not refer to the State’s hate crime statute, which provides for an enhanced sentence [for racial intimidation]. After Apprendi pleaded guilty, the prosecutor filed a motion to enhance the sentence. The court found that the shooting was racially motivated and sentenced Apprendi to a 12-year term on the firearms count.
Held:
(Stevens, joined by Souter, Ginsburg, Scalia & Thomas)
The Constitution requires that any fact that increases the penalty for a crime beyond the prescribed statutory maximum, other than the fact of a prior conviction, must be submitted to a jury and proved beyond a reasonable doubt.
Concurrence:
(Thomas & Scalia)
My view is that the Constitution requires a broader rule than the Court adopts. If the legislature defines some core crime and then provides for increasing the punishment of that crime upon a finding of some aggravating fact—then the core crime and the aggravating fact together constitute an aggravated crime, just as much as grand larceny is an aggravated form of petit larceny. Dissent:
(O’Connor, joined by Rehnquist & Breyer)
Our Court has long recognized that not every fact that bears on a defendant’s punishment need be charged in an indictment, submitted to a jury, and proved by the government beyond a reasonable doubt. Rather, we have held that the “legislature’s definition of the elements of the offense is usually dispositive.” The Court today casts aside our traditional cautious approach and instead embraces a universal and seemingly bright-line rule limiting the power of legislatures.
Source: Supreme Court case 99-478 argued on Mar 28, 2000
Miranda rights can be overruled by Congress.
Justice Thomas joined the dissent on DICKERSON v. UNITED STATES on Jun 26, 2000:
Mr. Dickerson, under indictment for bank robbery and related federal crimes, moved to suppress a statement he had made to the FBI, on the ground he had not received “Miranda warnings” before being interrogated. The Government appealed [on the grounds that] his statement was voluntary [as allowed by a Congressional law]. That court concluded that Miranda was not a constitutional holding, and that, therefore, Congress could by statute have the final say on the admissibility question.
Held:
(Rehnquist, joined by Stevens, O’Connor, Kennedy, Souter, Ginsburg, and Breyer)
In Miranda v. Arizona (1966), we held that certain warnings must be given before a suspect’s statement could be admitted in evidence. Congress then enacted a rule that the admissibility of such statements should turn only on whether or not they were voluntarily made. We hold that Miranda, being a constitutional decision of this Court, may not be in effect overruled by an Act of Congress,
and we decline to overrule Miranda ourselves. Dissent:
(Scalia, joined by Thomas)
Today’s decision is not a reaffirmation of Miranda, but a radical revision of the most significant element of Miranda. Marbury v. Madison (1803), held that an Act of Congress will not be enforced by the courts if what it prescribes violates the Constitution. That was the basis on which Miranda was decided. One will search today’s opinion in vain, however, for a statement (surely simple enough to make) that [the law in this case] violates the Constitution. [Instead, the Court is adopting] a significant new principle of constitutional law, in which statutes of Congress can be disregarded, not only when what they prescribe violates the Constitution, but when what they prescribe contradicts a decision of this Court that “announced a constitutional rule.” I dissent.
Source: Supreme Court case 99-5525 argued on Apr 19, 2000
Boy Scouts may exclude gay scoutmasters.
Justice Thomas joined the Court's decision on BOY SCOUTS OF AMERICA v. DALE on Jun 28, 2000:
The Boy Scouts is a private, not-for-profit organization engaged in instilling its system of values in young people. It asserts that homosexual conduct is inconsistent with those values. Mr. Dale is an adult whose position as assistant scoutmaster of a New Jersey troop was revoked when the Boy Scouts learned that he is an avowed homosexual and gay rights activist. Dale alleged that the Boy Scouts had violated the state statute prohibiting discrimination on the basis of sexual orientation in places of public accommodation.
Held:
(Rehnquist, joined by O’Connor, Scalia, Kennedy, & Thomas)
Applying New Jersey’s public accommodations law to require the Boy Scouts to admit Dale violates the Boy Scouts’ First Amendment right of expressive association. An intrusion into a group’s internal affairs by forcing it to accept a member it does not desire [is an] unconstitutional burden. However, the freedom of association is
not absolute; it can be overridden by regulations adopted to serve compelling state interests. Dissent:
(Stevens, joined by Souter, Ginsburg, & Breyer)
New Jersey “prides itself on judging each individual by his or her merits” and on being “in the vanguard in the fight to eradicate the cancer of unlawful discrimination of all types from our society.” Since 1945, it has had a law against discrimination. The law broadly protects the opportunity of all persons to obtain the advantages and privileges “of any place of public accommodation.” The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free speech. But that law does not “impose any serious burdens” on BSA’s “collective effort on behalf of its shared goals,” nor does it force BSA to communicate any message that it does not wish to endorse. New Jersey’s law, therefore, abridges no constitutional right of the Boy Scouts.
Source: Supreme Court case 99-699 argued on Apr 26, 2000