Â Beginning in 1997, Tammy Auer’s supervisor at the Sanitation Department made inappropriate sexual comments to her, including the suggestion that they have a baby together. Eventually he began to touch her and threaten that he would fire her. When she secured another assignment, he followed her. Auer resigned and filed a complaint with the United States Equal Opportunity Commission, which upheld her charges.
The next year, Tonja McGhee was assigned to do maintenance work at the New York City Housing Authority. For a while, she was engaged in a consensual sexual relationship with her supervisor. When she terminated the relationship, the supervisor falsely reported to higher-ups that McGhee was not doing her work. Following that, he ordered her to undress. McGhee’s complaints were ignored and she, too, filed a complaint with the federal commission. As in Auer’s case, the commission found reasonable cause to accept the truth of the allegations and referred the charges to the United States Department of Justice.
What these women had in common besides their harassment is that they were participating in the city’s “Work Experience Program,” and there was a question whether they were employees or not, and whether they were thus entitled to federal protection when sexually harassed. They were also part of a case that asked the federal courts to decide.
Previous state and federal cases decided that such workers were not in fact employees and therefore not eligible for employee discrimination protection. (See “Do Welfare Workers Deserve Workplace Protection” by Jonathan Rosenbloom, the February 2003 law topic page update for Gotham Gazette.)
But now, In the case of United States of America v. City of New York, the United States Court of Appeals for the 2d Circuit has reversed the lower federal court and decided that women workers who had complained of sexual harassment were indeed entitled to federal protection.
The opinion by Judge Rosemary Pooler said that Work Experience Program workers are protected by Title VII of the Civil Rights Act of 1964 which prohibits employment discrimination.
Attorney Timothy J. Casey, of NOW Legal Defense and Education Fund, who argued the appeal for the workers said, “It is unusual for the United States Department of Justice and us to take the same position on a civil rights issue, and for the City of New York to take a contrary position.” But that is what happened here.
The parties’ contrary positions turned on whether plaintiffs’ activities constituted employment; the defendants maintain that the answer to that is no. The city argued that the plaintiffs were not employees, were not hired, did not receive wages and were therefore not eligible for the protection of Title VII. In essence, according to the defendants, the aggrieved participants had no remedies and were given no protections by Congress against sex, race or other forms of employment discrimination because they were not employed.
However, the United States Department of Justice and the various named plaintiffs argued that the plaintiffs worked, that their work was a condition of receiving public assistance, that they were paid cash and food stamps, that they received additional benefits such as childcare and transportation amounting to compensation, and that Title VII of the Civil Rights Act applied to them. Federal Judge Pooler wrote, “A plaintiff who unjustifiably refused to work could lose the portion of the family’s grant attributable to her. Thus, each plaintiff had to work in order to receive her share of the family grant. A functional commonsense assessment of the plaintiffs’ alleged relationship with the city results in the conclusion that they were employees.”
The plaintiffs became Work Experience Program workers when previous welfare laws were replaced by the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996 and Temporary Assistance to Needy Families (TANF) , which ended government benefits by “promoting job preparation, work, and marriage.” As political figures commonly described the new laws at the time, “This is the end of welfare as we know it.” In order for a state to receive federal this assistance, it must require work activities in exchange for paying benefits to needy families. In compliance with the new laws and mandates, each of the women in this case sought and accepted a work assignment at a New York City agency -- and each was harrassed:
- Maria Gonzalez was assigned by the Human Resources Administration to work in its office. There her supervisor began to grope her, to speak to her in an abusive and menacing way, including threatening her life. In 1999 she, too, filed a complaint with the Equal Opportunity Commission, which was also referred to the Department of Justice.
- Theresa Caldwell-Benjamin, an African-American woman, was assigned to the Parks Department on Staten Island. On her first day there, she found a noose hanging in her work area, as well as a racist caricature of black people. Ms. Caldwell-Benjamin, similarly complained to the commission.
- Norma Colon received a Human Resources Administration assignment as a computer operator. Her supervisor repeatedly commented on the physical characteristics of Colon and other women; he suggested spending the night together at a motel. Because Ms. Colon rejected him, he refused to authorize her childcare and she was forced to leave the work assignment. She, too, complained to the commission and was granted the right to sue.
Shortly after Judge Pooler’s opinion was handed down, the defendant City of New York, represented by Corporation Counsel, petitioned for a rehearing before the full 2nd Circuit bench. Although Judge Pooler’s opinion was not unanimous (one of three appellate judges dissented), such petitions are rarely granted by this court; no decision has been reached. Unless the full court does reconsider the matter and reverses, a trial will be scheduled on the charges and claims for monetary damages. Emily Jane Goodman is a New York State Supreme Court Justice