03/17/2011 05:18 pm ET | Updated May 25, 2011

Sex, Justice, and the -Isms

What would you do if you learned that two weeks from now a man repeatedly accused of aggressive sexual misconduct may decide whether women have the power to confront people who discriminate against them?

On March 29th, the Supreme Court will hear arguments in Wal-Mart v. Dukes, the largest civil rights case in the history of the country. The decision in this case could bring women's progress to a grinding halt; and Supreme Court Justice Clarence Thomas may be the deciding vote. Yes, a man whose public debut was defined by accusations of egregious sexual misconduct could decide the economic future of women across the country. Can a man reportedly "obsessed with porn" who "spoke of (sex) acts he had seen in pornographic films involving such matters as women having sex with animals . . . or rape scenes" act as an effective arbiter of sex discrimination at work? And if not, what can be done about it?

The specific issue in Wal-Mart v. Dukes is whether or not 1 million female employees of the giant retailer can be considered a class. Because it is only the threat of action by a group (in legal terms a 'class') that makes illegal bias economically un-viable for large corporations, the outcome of this case is paramount. It is significantly cheaper to bury a single employee in legal fees and continue the illegal pay disparity than it is to pay male and female employees equal pay for equal work. As a 'class', the women will have substantial power to confront the company's illegal bias against them; without class designation, they will not.

Lillian McEwen, a former long-term girlfriend of Thomas, recently released a memoir that sheds new light on the Justice's personality and his casual misogyny. Largely ignored by the media, McEwan's account bolsters Anita Hill's stories of Thomas' behavior in the workplace describing how Thomas made a hobby of "sizing up" women at work. McEwan details Thomas' obsession with pornography, which she calls "just a part of his personality structure." In interviews, Ms. McEwan says that pornography, and the attitudes that accompany it, were not relegated to Thomas' private life. According to Ms. McEwen, Thomas "allowed his interest in pornography to bleed into his professional relationships." By McEwan's telling, for this Justice, bias and a penchant for disempowering women did not disappear when the DVD stopped.

The science around pornography is hardly complete, however many studies have shown that it increases bias against women. At the very least, it seems illogical that it would decrease one's bias. A review published in The Journal of Sex Research cites a study where college men and women were shown a variety of film clips and then asked to recommend sentencing for a convicted rapist. Students exposed to sexualized violence usually supported shorter sentences. Another study measured male subjects' "rape-myth acceptance", finding that subjects exposed to violent, sexually explicit images were more likely to agree with sentiments like - "women who dress a certain way are asking for it". By that logic, does wearing a skirt also mean women are asking to be paid substantially less than male counterparts for doing the same work?

Even the most cursory examination of Thomas' professional life indicates that while Anita Hill became the most famous of Thomas' victims, she was hardly the only one to suffer his peccadilloes. Unless something is done, millions more women will also suffer those effects. So in addition to substantiating Hill's account of Thomas' anti-woman bias, Ms. McEwan's account re-opens the door to questions that were not properly examined during the Anita Hill hearings. Questions like: should a person with a documented history of bias against a group of people be allowed judge cases that will enable that same bias?

Is there any basis for preventing a person who holds a particular bias to judge a case involving that same bias? Actually, yes. In 2008, then New Jersey Governor Corzine withdrew the reappointment of Judge Fred Kaiser Jr., a Superior Court Judge from Middlesex Country, who directed an anti-Asian slur at a defendant. The Asian American Bar Association, and (dare we hope most Americans?) applauded that move. Kaiser is not the only Judge to leave the bench in shame after making a biased and incendiary statement - a suburban Chicago judge also resigned after being caught using anti-black slurs at the scene of a traffic accident. Leaving the bench for racial slurs but not for sexual ones? Seems a little (eh-hem) biased, doesn't it? When will women - and the men who care about them - demand that prejudice against women be as damning a characteristic of a public official as prejudices of other kinds? If we would step forward against a judge with a history of anti-Semitism, or racism, shouldn't we step forward now?

Will we demand the removal of a man with a troubling and corroborated history of prejudice against a specific group of people or will we endorse his prejudice by continuing to allow him to serve on the Supreme Court?

Erica Payne, a public-policy strategist, is the founder of the Agenda Project, a policy and advocacy organization. She is the author of "Practical Progressive: How to Build a 21st Century Political Movement."

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