As EEOC Chief, Nominee Sided With Xerox in Age Bias Case

On March 16, 1987, Clarence Thomas, chairman of the Equal Employment Opportunity Commission, met behind closed doors with three fellow commissioners to decide whether to file suit against the Xerox Corp. for age discrimination.

Their discussion, a portion of which is excerpted below, provides an unusual glimpse at the past actions of Thomas, whose nomination to the U.S. Court of Appeals will be taken up by a Senate committee this week.

In a three-year investigation, EEOC staff lawyers had found that hundreds of employees were given the choice of resigning with extra severance pay or facing dismissal. At the same time, the company was hiring new, younger and lesser-paid employees to fill the same jobs.

In a memo to the commissioners, a staff lawyer concluded the company had engaged in a “massive” and “blatantly illegal” program to get rid of its older workers.

According to a transcript of the meeting, Thomas argued strenuously against siding with the employees.

THOMAS: “First of all, this is a standard practice in industry. I don’t know why Xerox is the only one we are after. If Xerox is on the chopping block, we have got about 100 other corporations we should be looking at. It’s a simple as that. OK? GM is doing the same thing.

“I feel strongly that these voluntary reductions in force (are legal), particularly among these top executives, unless someone can show me it is coercion.”

VICE CHAIRMAN RICKY SILBERMAN: “What if it is not top executives? These are not top executives.” (The staff said most earned between $35,000 and $50,000 a year. More than 1,300 employees were involved.)

THOMAS: “There are many executives. I mean you have a certain amount of age--not age--but you have a certain number of years. . . .”

SILBERMAN: “And cost of salary.”

THOMAS: “And it just adds a sweetener. It is a sweetener. You can take it or leave it. Now if there is coercion, then I think it is a whole different issue. OK? But as long as it is voluntary, I don’t see where costs or anything else has anything to do with it.”

SILBERMAN: “And do you think the threat of a RIF (reduction in force or layoff) constitutes coercion?”

THOMAS: “I think it constitutes reality.”

After the meeting, the EEOC voted 3 to 1, with Thomas in the majority, against intervening on behalf of the Xerox employees.