Clarence Thomas cast the key fifth vote to gut the ban on sexual harassment

Maybe we should have believed Anita Hill.

CREDIT: AP Photo/Michael Dwyer
CREDIT: AP Photo/Michael Dwyer

On Thursday, news broke that Justice Clarence Thomas allegedly groped a 23 year-old woman at a dinner honoring Truman Scholars. And this is hardly the first time that a woman has come forward with similar allegations against Thomas. The justice famously faced sexual harassment allegations from his former employee Anita Hill during his confirmation hearing.

Regardless of what may have occurred between Thomas and the women speaking out against him, his record as a justice suggests that he is not at all sympathetic to women’s legal claims, especially in the context of sexual harassment.

As a justice, Thomas has largely been hostile to litigants seeking to protect women’s rights. Thomas typically votes against reproductive choice. He voted to weaken equal pay protections in the Court’s congressionally overruled decision in Ledbetter v. Goodyear Tire. He joined the majority decision in Burwell v. Hobby Lobby, holding for the first time that an employer’s religious objections can trump the rights of their women employees. And, in one of the most under-reported decisions of the last several years, he cast the key fifth vote to hobble the federal prohibition on sexual harassment in the workplace.

Federal law distinguishes between sexual harassment by a co-worker and harassment by a supervisor. In a nutshell, an employer is only liable for co-worker on co-worker harassment if that employer was negligent in permitting that harassment to occur. But if a supervisor harasses a worker, the employer often is automatically liable for that supervisor’s actions.


In Vance v. Ball State University, a 5–4 Supreme Court redefined the word “supervisor” such that it means virtually nothing in many modern workplaces. Under Vance, a person’s boss only counts as their “supervisor” if they have the authority to make a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

One problem with this decision is that modern workplaces often vest the power to make such changes in employment status in a distant HR office, even though the employee’s real boss wields tremendous power over them. During oral arguments in this case, for example, Justice Elena Kagan warned of a hypothetical professor who subjects their secretary “to living hell, complete hostile work environment on the basis of sex.” Under the rule announced in Vance, that professor doesn’t qualify as a “supervisor” if the authority over the secretary’s job status rests with the “Head of Secretarial Services.”

Similarly, in her dissenting opinion, Justice Ruth Bader Ginsburg listed several real world examples of abusive bosses who no longer count as “supervisors” thanks to Vance. In one case, an African-American woman who worked as a mechanic’s helper faced racial and sexual harassment from the “mechanic in charge” of her work site. This mechanic “commented frequently on her ‘fantastic ass,’ ‘luscious lips,’ and ‘beautiful eyes,’ and, using deplorable racial epithets, opined that minorities and women did not ‘belong in the business.” At one point, “he pulled her on his lap, touched her buttocks, and tried to kiss her while others looked on.”

And yet, this “mechanic in charge” no longer counts as a “supervisor” thanks to Vance.

Similarly, a trainee truck driver was paired with a “lead driver” who lacked the authority to fire or promote her, but who directed much of her day-to-day work and who “evaluated trainees’ performance with a nonbinding pass or fail recommendation that could lead to full driver status.” One of these lead drivers “forced her into unwanted sex with him, an outrage to which she submitted, believing it necessary to gain a passing grade.”

And yet, this lead driver also does not count as a “supervisor” under Vance.

Because Vance was a 5–4 decision, the case would not have come down the same way without Thomas’ fifth vote. If a liberal justice held his seat, Ginsburg’s view would have prevailed.