The Role of the Courts in Securing Welfare Rights and ...

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Welfare Law Centerfor a private employer under circumstances where the placement could be said to fall outside thedefinition of “work relief.” There is no case history in this area upon which to rely and anylitigation that is brought will be a very fact-specific and novel test case.· Discrimination. Welfare recipients assigned to workfare or community services workare likely covered by a number of federal, state, and local statutes designed to protect againstdiscrimination or harassment based on gender, race, national origin, age, disability, or otherfactors. The extent of the protections will vary from state to state and city to city. To securethe protections of certain of the statutes, an aggrieved person may first have to complain to theadministrative agency prior to commencing litigation.· Displacement of Paid Workers. The federal TANF statute provides limitedprotections against displacement. It proscribes filling vacancies where an employee is on layofffrom the same or substantially equivalent job or where the employer has terminated a worker orinvoluntarily reduced its workforce in order to take workfare workers. 54 Displacement claims,however, may exist under both collective bargaining agreements as well as state and/or local laws.In Melish et al. v. City of New York, 55 two unions representing municipal workers claimthat New York City is violating state law, which prohibits workfare assignments that displaceregular workers. Plaintiffs claim that workfare assignments include painting and carpentry at theParks Department, work previously done exclusively by unionized workers. The complaintalleges that from 1988 to 1996 the number of unionized painters decreased from 30 to 5 andcarpenters from 54 to 22 and that the City has refused to fill vacancies and is instead usingworkfare workers to do the same work. It is unclear whether a comparable displacement claimcould be brought by the workfare workers.3. Applying Other Civil Rights LawsImplementation of TANF has particularly harmed minorities and these harms may beexacerbated by administrative practices that disproportionately affect particular groups, such asMay 1999⋅ 21 ⋅
Welfare Law Centerthose who are non-English speaking, persons of color, and those with disabilities. For example, arecent study found disparate treatment of African-American and white women in awardingdiscretionary transportation allowances under Virginia’s welfare work program. It also foundthat minority women received less favorable treatment from employers, such as less desirablework hours. 56And a recent Associated Press report noted the shifting racial composition of thewelfare rolls since 1994 with African-Americans, Hispanics, and/or Native Americans nowrepresenting an increasing proportion of welfare recipients in over half the states. 57 Federal,state, and local Civil Rights laws are an important tool to assure fairer treatment for these groups.The following identifies civil rights protections, but is not an exhaustive review of thelaw. For each law, there is also a body of court decisions outside the welfare context which willbe relevant to determining the applicability of the law to welfare programs. Generally, courtshave not yet been asked to apply these civil rights protections in the welfare context.In examining the potential applicability of any law, advocates must consider, for example,the extent of the protection offered by each statute, which individuals can claim the protection ofthe law, what entities are subject to the law’s prohibitions on discrimination, and what remediesthe law provides. There are also important questions to consider in determining how to enforcerights. For example, individuals may have to choose between seeking enforcement from anadministrative agency or the courts , and where such options exist, will have to make strategicchoices. In some situations, individuals will have to file a complaint with an administrativeagency before they can go to court. Advocates will want to consider using civil rights protectionsnot only affirmatively to seek changes in discriminatory policies and practices, but alsodefensively where an individual is threatened with a sanction and the event giving rise to thesanction involved discrimination.Federal Civil Rights LawsMay 1999⋅ 22 ⋅
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