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"The next phase of welfare reform . . . should focus on . . . ensuring that those. . . who have already made the transition from welfare to work, stay employed or, better yet, move up the career ladder," Mayor Michael Bloomberg has said.
On February 5, 2003, the United States Court of Appeals for the Second Circuit, the federal appeals court, heard oral arguments in a case that could have a major effect on whether Bloomberg's idea becomes a reality. The case centers on whether individuals who are required to work in a government agency in order to receive their welfare benefits are entitled to protection against workplace discrimination. The decision will affect approximately 130,000 welfare recipients a year, who work in New York City agencies, and will determine what, if any, protections they have from being sexually harassed, racially discriminated against or subject to other workplace discrimination.
THE WORK EXPERIENCE PROGRAM
The federal and state governments require New York City to provide welfare to anyone who, according to the state law, is "unable to provide for himself." The city is also mandated to develop a system to place in a work program 50 percent of single parents and 90 percent of adults who are in two-parent families New York City's work program, Work Experience Program (WEP), requires welfare recipients to work at various city agencies in return for their welfare benefits. For every hour the participants work they earn the minimum wage, paid to them via their welfare benefit. Typical program positions are entry-level office assistants and painting and cleaning public property.
UNITED STATES V. CITY OF NEW YORK
The case that was argued on February 5 involved five women in the work program. They alleged that their supervisors sexually harassed them, discriminated against them or retaliated against them for complaining about the discrimination. The women sued under the federal Civil Rights Act of 1964, which prohibits workplace discrimination when the discrimination involves those legally defined as an "employee" and "employer."
Several of the women also filed a separate suit in the state court. The primary difference in the state court cases was that the women claimed discrimination under the state and city anti-discrimination laws, instead of the federal statute.
On March 8, 2002, U.S. District Court Judge Robert C. Casey dismissed the federal case. Judge Casey decided that the women were not "employees" of New York City, even though they were paid for their work at the agencies and the agencies set their hours, schedule and where they would work. Because the women were not "hired" by the agencies and did not receive sick pay, health insurance, vacation time, life insurance and other benefits, Judge Casey ruled they were not "employees."
Several months later, New York County Supreme Court Justice Michael D. Stallman dismissed the state court case. Believing he was restricted by Judge Casey's decision, Justice Stallman ruled that Work Experience Program workers were not "employees" and therefore, were not entitled to protection under the state and city anti-discrimination laws. Justice Stallman stated, "WEP was intended to give public assistance recipients work experience and to provide the public with some useful service as a condition of continued receipt of public assistance. Nothing in the program either creates an employment relationship or was intended to create an employment relationship."
Welfare recipients' sole recourse for alleged harassment or discrimination was not to file a lawsuit, but rather, Justice Stallman concluded, to file a grievance with the city Human Resources Administration.
On May 3, 2002, the women appealed Judge Casey's decision in the federal case to the federal appellate court and on September 19, 2002, the women filed a notice of appeal to appeal the state case.
WHY THE CASE IS IMPORTANT
The decision as to whether Work Experience Program participants are entitled to protections under the anti-discrimination laws will have substantial implications for the 130,000 individuals a year who participate in the program.
The mayor has noted that "since requiring people to work is the best way to help them move to self-sufficiency, everyone who can work should work if they want to receive public assistance."
Achieving "self-sufficiency" can only be attained if work and the workplace foster non-discriminatory practices and protect workers. It is unlikely that the program will lead to "self-sufficiency" or economic independence for anyone who is subjected to groping, howling, cat-calling, or racial or religious slurs.
Justice Stallman noted that program participants, like all city employees, could file a disciplinary grievance with the Human Resources Administration. The city's grievance procedures are focused on disciplining the individual charged with committing the harassment or discrimination and addressing their continued employment with the city. The grievance procedures do not allow for compensation or other relief to the victim of the harassment. In contrast, the anti-discrimination laws are designed to compensate victims for the pain, suffering and mental anguish they suffer from being harassed or discriminated against in the workplace.
People should not be subjected to the embarrassment, fear or other injury inflicted by discriminatory practices simply by seeking welfare benefits. Providing the protections of the anti-discrimination laws will, in theory, deter future discrimination.
Finally, the decision sets a peculiar precedent for supervisors. Essentially, supervisors can treat equal positions differently. Although supervisors do not have carte blanche to discriminate against Work Experience Program workers, they do at least theoretically risk much less by discriminating against these workers than against other city "employees."
The federal appeals court must now decide whether the Work Experience Program provides a serious point of transition from welfare to work, with the protections that other city workers have.
Jonathan Rosenbloom is the associate director of the Center for New York City Law At New York Law School
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