Justice Thomas Should Sit This One Out : Clarence Thomas should not judge a harassment case that parallels Anita Hill’s charges.

Two weeks ago, Supreme Court Justice Clarence Thomas bowed out of a planned appearance before a convention of Concerned Women for America, a conservative organization that lobbies for prayer in the public schools and against legal abortion. Although the group strongly supported his confirmation to the court, Thomas apparently had second thoughts about delivering the “challenging message from his heart” advertised by convention organizers.

This week, as the court resumes work after its summer recess, Thomas is scheduled to participate in the most controversial case of his brief tenure. For the first time since the nationally televised confrontation between Thomas and law professor Anita Hill transformed sexual harassment into the hottest topic in employment law, the court has agreed to clarify whether crude jokes, sexual innuendoes and other inappropriate behavior directed at women in the workplace are harmless adolescent fun or illegal sex discrimination.

Thomas should bow out of this assignment too. He remains too closely identified with the role of sexual harasser to be an impartial decision-maker in Harris vs. Forklift Systems Inc. The Tennessee case is the first sexual-harassment appeal the court has agreed to hear in eight years and only its second ever.

The court has been asked to decide whether, in order to prevail, a woman who claims that she was the victim of sexual harassment in the workplace must prove that she suffered severe psychological harm. The court is also expected to address whether the proper perspective from which to evaluate the claim is that of a “reasonable person,” the traditional legal standard, or a “reasonable woman,” the emerging standard in the lower courts.

Two years ago, Thomas was narrowly confirmed to a lifetime seat on the court. Hill testified before the Senate Judiciary Committee that Thomas had directed crude jokes, sexual innuendoes and other offensive behavior toward her when she worked for him at the Equal Employment Opportunity Commission. Thomas vigorously disputed the charge. His guilt or innocence has never been established, but that’s not the point.

Thomas changed his mind about participation in the Concerned Women of America convention because it might look bad for a sitting justice to appear before an organization that takes public positions on contentious legal issues. Even stronger legal authority supports his recusal from Harris.

Canon 2 of the American Bar Assn. Code of Judicial Conduct says: “A judge shall avoid impropriety and the appearance of impropriety in all of the judge’s activities.” There is no way that Thomas, who was accused by Hill of demanding dates, bragging about his sexual prowess, describing pornographic films and complaining about somebody putting “pubic hair on my Coke,” can sit in judgment and avoid the appearance of impropriety.

Consider the facts in the Harris case: Teresa Harris claimed, and a federal magistrate found, that her boss, Charles Hardy, made Harris the object of “a continuing pattern of sex-based derogatory conduct” during her 2 1/2 years of employment. Hardy asked Harris to retrieve coins from the front pockets of his trousers. He threw objects on the ground and asked Harris to pick them up so he could observe her body and comment on her clothing.

Hardy joked that large-breasted women “are that way because they eat a lot of corn.” Once Hardy said to Harris: “Let’s go to the Holiday Inn and negotiate your raise.” He called her “a dumb-ass woman” and said “we need a man” to do her job. Finally, he accused her of offering a client sex to get his business. These remarks were made in the presence of other employees.

The court is expected to decide the sensitive issue of whether these facts must be weighed from a gender-neutral or distinctly female perspective. The same conduct that many men consider merely sophomoric many women find deeply offensive. The case will have a tremendous impact on the ability of Harris and other women to establish their claims in the federal courts--and on employers to defend against them.

Thomas denounced Hill’s charges as part of a “high-tech lynching.” It is too much to expect of him, or anyone else who suddenly finds himself on the bench instead of in the dock, to throw away the noose when presented with a case so similar to his own experience. To avoid the appearance of impropriety, no matter how noble his intentions, Justice Thomas should not participate in the Harris case.