Publication: New York Times, Front Page
By Nina Bernstein
October 1, 1999
The Giuliani administration violated Federal law when it turned away women who said they were being sexually harassed while working for their public assistance benefits, the U.S. Equal Employment Opportunity Commission ruled in a decision made public yesterday.
The city has maintained that the women were not employees and had no legal right to protection from sex discrimination in the workplace.
The commission’s finding came in the case of a homeless mother of two who charged that her city supervisor in a welfare-to-work program had pressed her for sex and retaliated against her when she refused. The commission, which found reasonable cause to believe the city subjected the woman to sexual harassment and sex discrimination, has between 5 and 10 similar cases in various stages of investigation, according to lawyers involved in them.
The women received subsistence benefits only on the condition that they work off the public aid in city clerical jobs at the equivalent of the minimum wage. New York City, which has the nation’s largest workfare program, with about 40,000 participants at any one time, is the only jurisdiction known to be contending that such workers are not entitled to the protection of Federal civil rights laws against sex discrimination in the workplace, according to Yolanda Wu, a lawyer with NOW Legal Defense and Education Fund, the organization that represents the woman whose case led to the ruling.
“The city does not condone sexual harassment of any kind,” Lorna Goodman, a senior lawyer in the city Corporation Counsel’s office, said yesterday. “If the civil rights laws do not cover these types of workers because they are not legally employees of the city, that does not mean that they have no redress.” She said the women could bring private lawsuits against the individuals they say harassed them, or even bring criminal charges of assault in cases where they say male supervisors groped them.
But Ellen Vargyas, legal counsel for the E.E.O.C. in Washington, said Federal regulations and court rulings now make clear that welfare recipients in workfare programs are protected by all anti-discrimination laws to the same extent that other employees are.
“It doesn’t matter what you call them,” she said. “It boils down to ‘Does the alleged employer control the manner and means of work.’ ”
The woman in the E.E.O.C. ruling was not named, but she said in legal papers that she was picked out from an orientation session for 50 welfare applicants by the man who became her supervisor in the spring of 1997. Over the next few weeks, she charged, he made unwanted sexual advances, and pressed her to go to a motel with him for sex.
In retaliation for her refusal, she said, she lost her job and had to fight to keep her welfare benefits.
Maria Gonzales, one of the women with a pending case before the E.E.O.C., said yesterday at a news conference that she had complained to two levels of supervisors, to no avail, that her boss at the city’s Human Resources Administration grabbed her genitals, demanded sex, stole her time cards and threatened her life when she refused his advances.
“I don’t think it’s right that the city should treat women who need their help like this,” said Ms. Gonzales, 32, who was unemployed and was facing eviction when she applied for public assistance in 1997. “I have nightmares and I still cry when I talk about this, and I’m still very afraid of that man.
When the commission sought to investigate several complaints of sexual harassment, the city refused to cooperate, maintaining in its legal papers that the commission had no authority to look into charges made by public assistance recipients because they were not employees.
After the E.E.O.C. went to Federal court in Manhattan to enforce subpoenas for city records connected with three of the cases, the city also argued that supplying the requested information would violate the confidentiality of welfare recipients.
“I know it’s not a particularly sympathetic position,” Ms. Goodman said. “But this is a legal issue. We have a good faith duty to protect the taxpayer.” Most of the women who have experienced sexual harassment in workfare jobs are afraid to complain, said Marc Cohan, a lawyer with the Welfare Law Center, the organization that helped the homeless mother of two keep her benefits.
She succeeded in earning her high school equivalency diploma and finding work in the private sector on her own, Mr. Cohan said.
“Why should she have less protection just because she's poor?” he asked. “We have a supposedly law-enforcement Mayor who is hiding behind legal technicalities instead of addressing what is a horrendous situation. It’s absolutely outrageous that the city’s claiming its program mirrors the world of work, and then it denies these women the basic rights that are available to other workers.”
In its written decision, the E.E.O.C. said its investigation determined that the city’s Human Resources Administration had violated Title VII of the Civil Rights Act of 1964, the basic Federal law that prohibits discrimination in employment on the basis of race and sex, because “it failed to inform a class of employees who worked as participants in New York City’s Work Education Program, funded through Temporary Assistance for Needy Families, of their rights under Title VII” and also failed to provide any mechanism to complain about harassment.
The law requires the commission to now try to eliminate the unlawful employment practices with persuasion and conciliation. If that fails, the E.E.O.C. can go to court. The women involved were barred from suing in court until they exhausted the E.E.O.C.’s remedies, Ms. Wu said, adding that NOW had unsuccessfully sought meetings to discuss the problem with the city for two and a half years.