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People required to work to receive welfare benefits are employees entitled to federal protection against sexual and racial harassment, a divided 2nd U.S. Circuit Court of Appeals panel has ruled. The decision has national implications, said Jennifer K. Brown, legal director of the National Organization for Women Legal Defense and Education Fund, which, with the Welfare Law Center, represented the lead private plaintiff on appeal. “It’s the first circuit court ruling regarding Title VII coverage for workfare workers,” said Brown. “It ensures that welfare recipients who work for their benefits have the same right to be free of discrimination and harassment as other American workers.” The decision reversed an unpublished federal district court ruling, U.S. and Colon v. City of New York, holding that workfare workers — about 90 percent of whom are women — had no employee-employer relationship and therefore were not entitled to the protections of Title VII of the Civil Rights Act of 1964. “We think the district court got it right and we endorse the dissenting view of the appeals court,” said Mordecai Newman, assistant corporation counsel for New York City. The city has asked the court to reconsider the case en banc. Plaintiffs and intervenors alleged that they had been groped and fondled by supervisors at various city agency work sites. When they complained, they were threatened, transferred, and lost or were compelled to leave their jobs, they alleged in their complaints. An African-American woman alleged that she worked at a parks department site where a racist caricature hung on a wall and a noose dangled from a window. They brought their complaints to other supervisors and received limited support, if any, they alleged. The women brought their alleged plight to the attention of the Equal Employ-ment Opportunity Commission. The EEOC investigated and then referred all seven cases to the Department of Justice. The DOJ did its own investigation, then the United States, on behalf of four of the complainants, brought suit. The DOJ issued a right-to-sue letter to just one of the remaining three women. NOW Legal Defense and co-counsel brought suit on behalf of that woman and, with other co-counsel, intervened on behalf of one of DOJ’s complainants. The three other DOJ complainants also have private counsel. The 2nd Circuit found that the district court’s ruling ignored EEOC opinions that generally treat people who work for welfare benefits as employees. Likewise, the federal departments of Labor and of Health and Human Services expressed opinions in various forms that said that “anti-discrimination laws ‘apply to welfare recipients as they apply to other workers,’” the court noted. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996 replaced Aid to Families with Dependent Children with Temporary Assistance to Needy Families. It set out nondiscrimination provisions, including age and disability, but made no mention of sexual and racial harassment. The defendant argued that since the statute had not set out Title VII protections, it had silently expressed an intention to exclude it. The appeals court found that “not every silence is pregnant.” In district court and on appeal, the city argued that plaintiffs were not hired because they received no remuneration for their work. The 2nd Circuit disagreed, saying that they were paid minimum wage in cash and food stamps and additionally received transportation expenses and child care and that they were eligible for workers’ compensation. Even if “implausibly” the payments were not considered wages, the workers would still be employees because the applicability of Title VII “turns on the substance of the relationship . . . not on labels,” the appeals court said. The district court found that the benefits workfare recipients received flowed from being on welfare instead of work. The 2nd Circuit said otherwise. “[P]laintiffs must perform useful work to receive any of the benefits,” the appeals court said of the Work Experience Program workers, the program for TANF recipients in New York. “Congress could easily have said that the benefits . . . may not be considered wages, but it did not.” The decision reinstated supplemental jurisdiction of the plaintiffs’ state and local claims. Several organizations filed amicus briefs, including the NAACP, Mexican-American, and Puerto Rican legal defense and education funds. This article originally appeared in The National Law Journal , a publication of American Lawyer Media.

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