United States v. City of New York, NY Brief Amici Curiae in Support of Plaintiff-Appellant

    UNITED STATES COURT OF APPEALS 
FOR THE SECOND CIRCUIT

UNITED STATES OF AMERICA, NORMA COLON,
Plaintiff-Appellants,

MARIA E. GONZALEZ, TAMMY AUER, THERESA CALDWELL-BENJAMIN, TONJA 
MCGHEE,

Intervenor-Plaintiff Appellants,
- v, -

CITY OF NEW YORK, NEW YORK CITY HOUSING AUTHORITY, JASON TURNER, 
individually and in his capacity as Commissioner of New York City Human Resources 
Administration,-GEORGE SANTIAGO, in his individual capacity,

Defendant-Appellees.

On Appeal from the United States District Court for 
the Southern District of New York

BRIEF OF NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 
COMMUNITY SERVICE SOCIETY OF NEW YORK, AND PUERTO RICAN LEGAL 

DEFENSE AND EDUCATION FUND, INC., AMICI CURIAE IN SUPPORT OF 
PLAINTIFF-APPELLANT UNITED STATES OF AMERICA, PLAINTIFF-APPELLANT 

NORMA COLON AND INTERVENOR-PLAINTIFF-APPELLANT TAMMY AUER

Juan Cartagena 
Risa E. Kaufman
COMMUNITY SERVICE SOCIETY 
OF NEW YORK
105 E.22nd Street
New York, New York 10010
(212) 254-8900

Elaine R. Jones 
Director-Counsel 

Norman J. Chachkin 
James L. Cott 
Elise C. Boddie 
NAACP LEGAL DEFENSE 

& EDUCATION AL FUND, INC 
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200



TABLE OF CONTENTS

TABLE OF AUTHORITIES................................................   ii

CORPORATE DISCLOSURE STATEMENT.......................................... viii

STATEMENTS OF INTEREST......... ............................................................1

SUMMARY OF ARGUMENT ...................................................................... 3

ARGUMENT..................     5

I. NEW YORK CITY WEP WORKERS REINFORCE THE WORK
PERFORMED BY CITY EMPLOYEES AND OFTEN SUPPLANT 
CITY EMPLOYEES ALTOGETHER.................................................... ...5

II. DENYING WEP WORKERS TITLE VII PROTECTION
AGAINST DISCRIMINATORY TREATMENT EXACERBATES THE 
ALREADY DAUNTING BARRIERS THEY FACE IN ACHIEVING 
SELF-SUFFICIENCY.....................................   9

III. THE DISTRICT COURT’S RULING SUBVERTS THE
PURPOSE OF TITLE VII.........................................................................14

A. Applying Title VII protections to the WEP workers in this case is
consistent with the statute’s purpose of eliminating discrimination in the 
workplace and the broad interpretation courts have given Title VII.....14

B. The district court’s ruling contravenes the purpose of Title VII by
failing to account for plaintiffs’ actual work experience -  as pled in 
their complaints -  and instead focusing on artificial criteria to define the 
plaintiffs’ employment status................................ ............................ 19

IV. THE DISTRICT COURT’S RULING, IF NOT OVERTURNED, 
WOULD CREATE A SUB-CLASS OF MOSTLY AFRICAN- 
AMERICAN AND LATINO WORKERS WHO ARE UNPROTECTED 
BY FEDERAL CIVIL RIGHTS LAWS BARRING EMPLOYMENT 
DISCRIMINATION ON THE BASIS OF RACE, SEX, OR NATIONAL
ORIGIN AND PROHIBITING SEXUAL HARASSMENT....................25

CONCLUSION......... ................................................................................... 30

CERTIFICATE OF SERVICE.....................................................................32

1



TABLE OF AUTHORITIES

Cases
Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975)..................................................................................16
Alexander v. Sandoval,

532 U.S. 275 (2001)..................................................................................26
Annis v. County o f Westchester,

36 F.3d 251 (2d Cir. 1994)...................................................................... 27
Armbruster v. Quinn,

711 F.2d 1332 (6th Cir. 1983)...................................................................17
Ass ’n Against Discrimination in Employment, Inc. v. City o f Bridgeport,

647 F.2d 256 (2d Cir. 1981).....................................................................26
Cook v. Arrowsmith Shelburne, Inc.,

69 F.3d 1235 (2d Cir. 1995).............................................. ................ 22, 23
County o f Washington v. Gunther,

452 U.S. 161 (1981)..................................................................................17
Davidson v. Capuano,

792 F.2d 275 (2d Cir. 1986).....................................................................28
Diana v. Schlosser,

20 F. Supp. 2d 348 (D. Conn. 1998).........................................................21
Fadeyi v. Planned Parenthood Ass ’n o f Lubbock, Inc.,

160 F.3d 1048 (5th Cir. 1998)............. ...... .............................................. 24
Gomez v. Alexian Bros. Hosp.,

698 F.2d 1019 (9th Cir. 1983)...................................................................21
Griggs v. Duke Power Co.,

401 U.S. 424 (1971)............................................................................16, 26
Harris v. Forklift Systems, Inc.,

510 U.S. 17 (1993).................................................................................. ..12
Int’IBhd. o f Teamsters v. U.S.,

431 U.S. 324(1977)...................................................................................17
Jin v. Metropolitan Life Ins. Co.,

295 F.3d 335 (2d Cir. 2002)......................................................................11

ii



Johnson v. Transportation Agency,
480 U.S. 616(1987)................................................................................... 16

King v. Chrysler Corp.,
812 F. Supp. 151 (E.D. Mo. 1993)................................ .......................... 21

Lauture v. IBM Corp.,
216 F.3d 258 (2d Cir. 2000).....................................................................24

Los Angeles Dept, o f Water and Power v. Manhart,
435 U.S. 707 (1978)...................................................................................23

McDonald v. Santa Fe Transportation Co.,
427 U.S. 273 (1976)...................................................................................23

McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973)......................   17

McKennon v. Nashville Banner Pub. Co.,
513 U.S. 352 (1995)...................................................................................16

Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986).................................................................................... 23

Moldand v. Bil-Mar Foods,
994 F. Supp. 1061 (N.D. Iowa 1998).......................................................21

O ’Connor v. Davis,
126 F.3d 112 (2d Cir. 1997)........................ ............................................ 19

Pelech v. Klaff-Joss, L.P.,
815 F. Supp. 260 (N.D. 111. 1993)................. ........................................... 21

Pullman-Standard v. Swint,
456 U.S. 273 (1982)...................................................................................16

Robinson v. Shell Oil Co.,
519 U.S. 337 (1997).................................................................................. 23

Rogers v. EEOC,
454 F.2d 234 (5th Cir. 1971).....................................................................18

Sherman v. Burke Contracting, Inc.,
891 F.2d 1527 (11th Cir. 1990),
cert, denied, 498 U.S. 943 (1990).................................................. .......... 21

Sibley Memorial Hospital v. Wilson,
488 F.2d 1338 (D.C. Cir. 1973)..........................................................17, 20

iii



Spirt v. Teachers Ins. & Annuity Ass ’n,
691 F.2d 1054 (2d Cir. 1982),
vacated on other grounds, 463 U.S. 1223 (1983).............................. 21, 22

Trevino v. Celanese Corp.,
701 F.2d 397 (5th Cir. 1983).....................................................................23

United Steelworkers v. Weber,
443 U.S. 193 (1979)................................................................................... 16

Vanguard Justice Society, Inc. v. Hughes,
471 F. Supp. 670 (D. Md. 1979)......................................... ..................... 22

Statutes
42 U.S.C. § 1983....................................................   27
42 U.S.C. § 602(a)(l)(A)(i)........................................................................... 18
42 U.S.C. §603(a)(5)(I)(iii)...........................................................................27
42 U.S.C. §603(a)(5)(I)(iv)...........................................................................27
42 U.S.C. §608(d)......................................................................................... 25
Age Discrimination Act of 1975,

42 U.S.C. §6101 etseq......................................................................   25
New York Social Services Law Sec 331(3)................................ ................ 28
NYCPLR §7801 etseq..................................................................................28
Personal Responsibility and Work Opportunity 

Reconciliation Act (“PRWORA”),
Pub. L. No. 104-93, 110 Stat. 2105 (1996)..............................................25

Section 504 of the Rehabilitation Act of 1973,
29 U.S.C. §794.......................................................................................... 25

The Americans with Disabilities Act of 1990,
42 U.S.C. §12101 etseq............................................................................ 26

Title VI of the Civil Rights Act of 1964,
42 U.S.C. §2000d etseq............................................................................ 26

Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§2000e etseq. (2001)........     passim

IV



Regulations
12NYCCR Sec. 1300.11(b)..........................................................................28
12NYCCR Sec. 1300.11(b)(6).....................................................................28

Treatises
Merrick T. Rossein,

Employment Discrimination Law and Litigation §1-4 (2001).................15

Other Authorities
Andrew Bush, Swati Desai, and Lawrence Meade,

Leaving Welfare: Findings from a Survey o f Former
New York City Welfare Recipients (New York City Human Resources
Administration Working Paper 98-01, 1998)............................................ 13

Building a Ladder to Jobs and Higher Wages: 
a Report by the Working Group on New York City’s 
Low-Wage Labor Market (Oct. 2000)....................................................   13

Citizens’ Committee for Children,
Child Care: The Family Life Issue in New York City (2000)...................13

Community Voices Heard,
WEP Workers Work Experience Program:
New York City ’s Public Sector Sweat Shop Economy (2000)..............6, 10

Developments in the Law -  Employment Discrimination 
and Title VII o f the Civil Rights Act o f1964,
84 Harv. L. Rev. 1109(1971)....................................................................15

Heather Boushey, Economic Policy Institute,
Staying Employed After Welfare: Work Supports and Job Quality Vital to 
Employment Tenure and Wage Growth (June 2002)............................. 13

Human Resources Administration,
NYC Public Assistance Fact Sheet (available at
http://www.nyc.gov/html/hra/pdf/hrafact_Oct 2001.pdf).........................25

National Partnership for Women & Families,
Detours on the Road to Employment: Obstacles Facing Low-Income 
Women (1999).........................................................................................-10



Office of the State Comptroller, State of New York,
Report 99-J-l, Welfare Reform: Assessing Educational and Training 
Needs o f Temporary Assistance for Needy Families Recipients (2000)... 10

Pamela Loprest,
Who Returns to Welfare
(The Urban Institute Series B, No. B-49, 2002).......................................14

Rebecca Gordon, Applied Research Center,
Cruel and Usual: How Welfare ‘Reform ’ Punishes Poor People (2001). 11

Richard M. Tolman & Jody Rapheal,
A Review o f Research on Welfare and Domestic Violence (2000)
(available at www.ssw.umich.edu/trapped/pub.html)................... .......... 10

S. Rep. 867, 88th Cong., 2d Sess. (1964)................ .................................. 17
Sheila Zedlewski,

Work-Related Activities and Limitations o f Current Welfare Recipients 
(Urban Institute Discussion Paper 99-06, July 1999)...............................10

The City of New York,
Fiscal Year 2000 Mayor’s Management Report (2000)............................7

The City of New York,
Fiscal Year 2001 Mayor’s Management Report (2001)............................7

The Rockefeller Institute of Government,
Leaving Welfare: Post-TANF Experiences o f New York State 
Families (2002) (available at 
www.rockinst.org/publications/federalism/
leaver_fmal_June_2002.pdf)............. ...................................................... 14

U.S. Commission on Civil Rights,
A New Paradigm for Welfare Reform: The Need for Civil Rights 
Enforcement, August, 2002
(available at www.usccr.gov/pubs/prwora/welfare.htm).......................... 11

Use of Work Experience Program Participants 
at the Department o f Parks and Recreation, Inside the Budget 
(Independent Budget Office, New York, N.Y., Nov. 2000)......................7

Welfare Overhaul Proposals:
Hearing on Welfare Reauthorization Proposals Before Subcommittee on 
Human Resources o f the House Committee on Ways and Means 
107th Cong. (April 11, 2002) (statement of Jason A. Turner,

Director for Self-Sufficiency, Milwaukee, Wise.)...................................5

VI

http://www.rockinst.org/publications/federalism/


Welfare Overhaul Proposals:
Hearing on Welfare Reauthorization Proposals Before Subcommittee on 
Human Resources o f the House Committee on Ways and Means,
107th Cong. (April 11, 2002) (statement of Lee Saunders,
Executive Assistant to the President, American Federation 
of State, County, and Municipal Employees (“AFSCME”), and 
Administrator, AFSCME District Council 37, New York)........................8

vii



CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, 

NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

COMMUNITY SERVICE SOCIETY OF NEW YORK, and PUERTO 

RICAN LEGAL DEFENSE AND EDUCATION FUND, INC., amici curiae 

herein, through the undersigned counsel, make the following disclosures: 

Amici, all not-for-profit corporations of the State of New York, are 

neither subsidiaries nor affiliates of a publicly-owned corporation.

Risa J b .  j^aurman, nsq, 
COMMUNITY SERVICE 
SOCIETY OF NEW YORK
105 E. 22nd St.
New York, NY 10010

VIII



STATEMENTS OF INTEREST

NAACP Legal Defense and Educational Fund, Inc.

The NAACP Legal Defense and Educational Fund, Inc. (“LDF”) is a 

non-profit corporation established under the laws of the State of New York. 

It was formed to assist black persons in securing their constitutional rights 

through the prosecution of lawsuits and to provide legal services to black 

persons suffering injustice by reason of racial discrimination. For six 

decades, LDF attorneys have represented parties in litigation before the 

United States Supreme Court and the lower federal courts involving race 

discrimination and particularly discrimination in employment. LDF believes 

that its experience in, and knowledge gained from, such litigation will assist 

the Court in this case.

Community Service Society of New York

For more than 150 years, the Community Service Society of New 

York (“CSS”) has been leading the fight against poverty in New York City. 

CSS focuses on the deeper-seated problems that prevent people from 

permanently moving out of poverty, combining research, advocacy, direct 

service, volunteerism, community organizing and litigation to address issues 

related to housing, income security, education, health, and community

i



development. Since 1987, CSS’s Department of Legal Counsel has helped 

fulfill the promise that the law should serve all people and has played an 

essential role in the organization’s fight against poverty by participating as 

direct counsel and amicus curiae in cases involving barriers faced by low- 

income New Yorkers.

Puerto Rican Legal Defense and Education Fund, Inc.

The Puerto Rican Legal Defense and Education Fund, Inc. 

(“PRLDEF”) is a national non-profit civil rights organization founded in 

1972. It seeks to ensure the equal protection of the laws to protect the civil 

rights of Puerto Ricans and other Latinos through litigation and policy 

advocacy. Since its inception, PRLDEF has participated both as direct 

counsel and as amicus curiae in numerous cases throughout the country 

concerning the proper interpretation of the civil rights laws.

2



SUMMARY OF ARGUMENT*

In New York City, workers participating in the City’s Work 

Experience Program (“WEP”) face daunting roadblocks to economic self- 

sufficiency. The complainants in the cases below painted a grim picture of 

the hostile and sexually harassing environments in which they were 

compelled to work in order not to lose their benefits. Although these 

workers consistently perform the same or similar jobs as those performed by 

other city workers — so much so that the City appears to have reduced its 

workforce in reliance on their labor -  the district court below found that 

they were not “employees” and, therefore, unprotected by Title VII of the 

Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq. (2001) (“Title VII”).

The district court’s ruling perpetrates a gross injustice on WEP 

workers. If not reversed by this Court, the district court’s decision would 

create a sub-class of predominantly African-American and Latino workers, 

completely unprotected by federal civil rights laws barring employment 

discrimination on the basis of race, gender, and national origin and 

prohibiting sexual harassment. This plainly contravenes Title VII’s purpose 

of eliminating discrimination in the workplace and the broad interpretation 

courts consistently have given Title VII to effectuate that purpose. By

This brief is filed with the consent of all parties to these consolidated 
appeals.

3



denying these workers the same legal protection against discriminatory and 

harassing conduct afforded others -- who perform the same or similar work 

in the same workplace — the district court’s decision further ostracizes a 

minority population already living on the social and economic margins. The 

consequences of the court’s ruling are particularly acute given that WEP 

workers have extremely limited options in the labor market and, without 

legal recourse, may be trapped in a discriminatory, harassing, and abusive 

environment.

4



ARGUMENT

I. NEW YORK CITY WEP WORKERS REINFORCE THE WORK 
PERFORMED BY CITY EMPLOYEES AND OFTEN SUPPLANT CITY 
EMPLOYEES ALTOGETHER

WEP workers comprise a critical sector of the City’s workforce, 

supplementing and often supplanting City employees. The City extols the 

virtue of the WEP program as a simulated work environment for WEP 

workers. The Commissioner of New York City’s Human Resources 

Administration during the administration of former Mayor Giuliani 

described the goal of the workfare program as “genuine practice for private 

employment.” Welfare Overhaul Proposals: Hearing on Welfare 

Reauthorization Proposals Before Subcommittee on Human Resources o f the
x L

House Committee on Ways and Means 107 Cong. (April 11, 2002) 

(statement of Jason A. Turner, Director for Self-Sufficiency, Milwaukee, 

Wise.). Far from a simulation, however, the WEP program extracts real 

work from WEP workers, who often do the same jobs and provide the same 

valuable services as other city employees. The lower court’s denial of Title 

VII protections thus enables the City to benefit from their labor while 

avoiding its obligation to respect their civil rights — as it must respect the 

rights of other city workers.

5



A survey of WEP workers in 1999 and 2000 conducted by 

Community Voices Heard (“CVH”), an organization of individuals on 

welfare and in workfare in New York City, found that “[w]hile the vast 

majority of workfare participants perform entry-level jobs, many also do 

more complex jobs with higher degrees of responsibility, including 

supervising and training other workfare workers, opening and closing city 

buildings and parks, and assisting the general public with community 

problems.” Community Voices Heard, WEP Workers Work Experience 

Program: New York City’s Public Sector Sweat Shop Economy 5 (2000). 

The surveyors found that 86 percent of survey respondents in all categories 

of workers reported that they performed the same work as municipal 

employees at their WEP sites, id. at 6, with more than 90 percent of the 

workfare workers in the Metropolitan Transit Authority reporting that they 

performed the same work as transit employees. Id. at 14. The survey also 

found that workfare workers provide janitorial and maintenance work in the 

Department of Citywide Administrative Services, and clerical and office 

work in a variety of City offices, including the Office of Employment 

Services, neighborhood Jobs Centers, Department of Housing and 

Preservation, and in borough buildings and schools. Id. at 8-9. WEP

6



workers also work in day care and senior care facilities throughout the City. 

Id.

The City’s Independent Budget Office reported similarly that WEP 

workers help maintain and clean the City’s parks, with 95 percent of WEP 

workers performing tasks similar to the work done by the City’s park 

workers and maintenance employees. Use o f Work Experience Program 

Participants at the Department o f Parks and Recreation, Inside the Budget 

(Independent Budget Office, New York, N.Y., Nov. 2000), at 1. The 

Department of Parks and Recreation has “significantly augmented [its] 

workforce, even as the number of full-time and seasonal employees has 

declined.” Id. at 1-2.1

1 The Office of the Mayor attributes an increase in the City’s street 
cleanliness ratings -  from under 75 percent in 1996 to 86.7 percent in Fiscal 
Year 2000 -  to the labor of WEP workers within the Department of 
Sanitation. The City of New York, Fiscal Year 2000 Mayor’s Management 
Report 89 (2000). During the first four months of Fiscal 2001, WEP 
workers at the Department of Transportation removed 8,247 cubic yards of 
debris from the highways and removed stickers from 9,101 signs and poles. 
The City of New York, Fiscal Year 2001 Mayor’s Management Report 89 
(2001). The Independent Budget Office (“IBO”) notes that during a time 
when the number of full-time employees at the City’s Department of Parks 
and Recreation plummeted, the overall parks “acceptability rating” improved 
from 57 percent in 1992 to 89 percent in 2000, an improvement that the IBO 
noted was likely attributable to the increase in the number of WEP workers 
at the Department. Use of Work Experience Program Participants at the 
Department o f Parks and Recreation, Inside the Budget (Independent 
Budget Office, New York, N.Y., Nov. 2000), at 1.

7



Indeed, at least one municipal union has charged that the workfare 

program has resulted in the elimination of thousands of City jobs, as WEP 

participants are substituted for City workers. Between December 1993 and 

November 1998, the number of civilian employees declined by about 15,000 

in City agencies, with most of those lost jobs in entry-level positions. 

Welfare Overhaul Proposals: Hearing on Welfare Reauthorization

Proposals Before Subcommittee on Human Resources o f the House 

Committee on Ways and Means, 107th Cong. (April 11, 2002) (statement of 

Lee Saunders, Executive Assistant to the President, American Federation of 

State, County, and Municipal Employees (“AFSCME”), and Administrator, 

AFSCME District Council 37, New York). AFSCME estimates that the 

WEP program caused the loss of 800 jobs in the Parks Department and 

1,600 in the Human Resources Administration. Id. For example, AFSCME 

documented an 85 percent staff reduction, from 136 to 24 custodial 

assistants, in the City’s welfare offices, while hundreds of WEP workers 

were assigned to clean the offices. Id.

8



II. DENYING WEP WORKERS TITLE VII PROTECTION AGAINST 
DISCRIMINATORY TREATMENT EXACERBATES THE ALREADY 
DAUNTING BARRIERS THEY FACE IN ACHIEVING SELF- 
SUFFICIENCY

Their significant role in the City’s workforce notwithstanding, welfare 

recipients face numerous obstacles to gaining economic self-sufficiency 

through permanent, full-time employment. It would be highly ironic and 

problematic to exacerbate these barriers by denying WEP workers the civil 

rights protections that apply to other City workers, many of whom do the 

same or similar work as WEP workers. The lower court’s exclusion of WEP 

workers from Title VII protections threatens to create a sub-class of City 

workers whose labor is repeatedly taken advantage of while their civil rights 

are trammeled. Title VII protections for WEP workers are, therefore, 

essential both to enable WEP workers to succeed and to prevent against the 

exploitation of this vulnerable class of workers.

WEP workers face myriad barriers to finding permanent, full-time 

employment. Using data based on a 1997 survey of individuals nationwide 

receiving cash assistance, the Urban Institute found that welfare recipients 

are inhibited in finding permanent private employment due to low education 

levels (41 percent), lack of recent work experience (43 percent), need to care 

for an infant or disabled child (19 percent), and either poor physical or poor

9



mental health (48 percent). Sheila Zedlewski, Work-Related Activities and 

Limitations o f Current Welfare Recipients 8-10 (Urban Institute Discussion 

Paper 99-06, July 1999). See also National Partnership for Women & 

Families, Detours on the Road to Employment: Obstacles Facing Low- 

Income Women 2 (1999) (welfare recipients identifying the following as 

“often” or “very often” being obstacles to employment: lack of education 

and training (87.9%); lack of transportation (86.5%); lack of child care 

(84.7%)). Domestic violence is another obstacle faced by many welfare 

recipients seeking to find permanent employment, with as many as 60 

percent of women receiving welfare experiencing domestic violence as 

adults. Richard M. Tolman & Jody Rapheal, A Review o f Research on 

Welfare and Domestic Violence 5 (2000) (available at

www.ssw.umich.edu/trapped/pub.html). A lack of training and skills also 

severely inhibit WEP workers from becoming self-sufficient.2

Though WEP workers provide valuable labor and services to the City, 
the City fails to provide them with the tools necessary to overcome this 
obstacle. The Community Voices Heard survey discussed above found that 
less than a quarter of the New York City WEP workers responding to the 
survey reported receiving any regular training on the job. WEP Work 
Experience Program: New York City’s Public Sector Sweat Shop Economy, 
at 8. See also Office of the State Comptroller, State of New York, Report 
99-J-l, Welfare Reform: Assessing Educational and Training Needs o f 
Temporary Assistance for Needy Families Recipients 5 (2000) (finding that 
assessments often were not made of TANF recipients’ skills and experience

10

http://www.ssw.umich.edu/trapped/pub.html


Allowing harassment and discrimination against WEP workers to go

unchecked will only exacerbate the difficulties they have in transitioning to

permanent employment.* 3 Based on a study covering thirteen states, the

United States Civil Rights Commission reports that:

people of color have encountered insults and disrespect as they 
have attempted to navigate the welfare system. . . . women are 
frequently subject to sexual inquisitions at welfare offices and 
sexual harassment at job activities, often with no recourse.

U.S. Commission on Civil Rights, A New Paradigm for Welfare Reform:

The Need for Civil Rights Enforcement (Aug., 2002) (available at

www.usccr.gov/pubs/nrwora/welfare.htm), («citing Rebecca Gordon, Applied

Research Center, Cruel and Usual: How Welfare Reform ’ Punishes Poor

People 5, 33-34 (2001)). The emotional toll exacted by such experiences is

enormous. See, e.g., Jin v. Metropolitan Life Ins. Co., 295 F.3d 335, 339

(2d Cir. 2002) (after “months of submitting to the weekly sexual abuse out

of fear of losing her job, [plaintiff] . . . requested disability benefits due to

when making job placements, and thus significant barriers to employment 
are not identified and addressed through education and training).

3 A study of employment opportunities for a pool of welfare recipients 
in Virginia found that relative to white recipients, blacks are more likely to 
be subjected to pre-employment tests (such as drug or criminal background 
checks); to receive shorter interviews -  even when they have more 
education than their white counterparts -  ; to work less desirable evening 
hours; and to have a more negative relationship with their supervisors. See 
Susan T. Gooden, The Hidden Third Party: Welfare Recipients’
Experiences with Employers, 5 J. of Pub. Mgmt. & Soc. Pol’y 69-83 (1999).

l i

http://www.usccr.gov/pubs/nrwora/welfare.htm


the effects of the severe harassment”); Id. at 344-45 (“Requiring an 

employee to engage in unwanted sex acts is one of the most pernicious and 

oppressive forms of sexual harassment that can occur in the workplace. The 

Supreme Court has labeled such conduct ‘appalling’ and ‘especially 

egregious.”’) {citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 

(1993)). Workfare recipients forced to provide services under such 

conditions can hardly be expected to acquire the personal resources and 

skills that will facilitate their successful entry into the job market.

Moreover, those WEP workers who do manage to find permanent 

employment face overwhelming barriers to achieving self-sufficiency. Title 

VII protections help to ensure that WEP workers are not diverted by 

debilitating harassment and discrimination from securing the skills and 

training they require to move into permanent employment, and that those 

who must return to the program do not become an exploited sub-class of 

City workers.

For instance, most WEP workers moving into the permanent work 

force will be unable to find a job that pays them a living wage. Average 

wages for former welfare recipients nation-wide are approximately $6 to $8

12



per hour, with only about one quarter of such jobs providing health benefits.4 

Without health insurance, they will not be able to secure adequate medical 

care, further compromising their ability to retain steady employment.5 The 

difficulties of finding safe, affordable, and reliable child care also impair the 

transition to full-time employment.6

These barriers mean that many former welfare recipients may find 

themselves returning to welfare and, thus, to the WEP program just to 

survive. Indeed, a recent report by the Urban Institute found that, nationally, 

one in five families leaving welfare return within two years. Pamela

See Heather Boushey, Economic Policy Institute, Staying Employed 
After Welfare: Work Supports and Job Quality Vital to Employment Tenure 
and Wage Growth 4 (June 2002). See also Andrew Bush, Swati Desai, and 
Lawrence Meade, Leaving Welfare: Findings from a Survey o f Former New 
York City Welfare Recipients 12 (New York City Human Resources 
Administration Working Paper 98-01, 1998) (survey of former welfare 
recipients found that 48 percent of those who were employed reported that 
their income was the same or less than what they had received with welfare).

5 See Staying Employed after Welfare, at 7 (reporting on a national 
study which found that low-wage jobs are less likely to offer health 
insurance than high wage jobs).

See Staying Employed After Welfare, at 5-8; Building a Ladder to 
Jobs and Higher Wages: a Report by the Working Group on New York 
City’s Low-Wage Labor Market 124 (Oct. 2000) (more than 30,000 children 
on the waiting lists for subsidized child care available to low-income 
families in New York City); Citizens’ Committee for Children, Child Care: 
The Family Life Issue in New York City 3 (2000) (over 100,000 New York 
City Children ages 0 through 5 were eligible for but did not receive child 
care subsidies in 2000).

13



Loprest, Who Returns to Welfare 1 (The Urban Institute Series B, No. B-49, 

2002). Similarly, a recent survey, conducted by the Rockefeller Institute, 

found that of people who left public assistance in New York State during 

1999, twenty-one percent reported returning to assistance during the 18 to 24 

month follow-up period. The Rockefeller Institute of Government, Leaving 

Welfare: Post-TANF Experiences o f New York State Families 26 (2002) 

(available at www.rockinst.org/publications/federalism/

leaver_final_June_2002.pdf). Clearly, then, by excluding WEP workers 

from Title VII protections, the lower court’s ruling threatens to create a sub­

class of workers trapped in discriminatory environments.

III. THE DISTRICT COURT’S RULING SUBVERTS THE PURPOSE 
OF TITLE VII

In its exclusion of WEP workers from Title VII protection, the district 

court’s decision subverts the purpose of the statute and elevates form over 

substance by focusing on superficial criteria to define Plaintiffs employee 

status. The decision also deprives a vulnerable population of protection 

under the only federal civil rights law expressly intended to bar 

discrimination in employment.

A. Applying Title VII protections to the WEP workers in this case 
is consistent with the statute’s purpose of eliminating 
discrimination in the workplace and the broad interpretation

14

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courts have given Title VII.

In enacting Title VII, Congress sought to eradicate discrimination in

the workplace, animated, at least in part, by its recognition that the

prevalence of racial discrimination in the work environment was a primary

cause of the depressed economic condition of African Americans.

Chief among the complex of motives underlying the equal 
employment opportunity provisions of the Civil Rights Act of 
1964 was doubtless a desire to enhance the relative social and 
economic position of the American black community. Few 
domestic problems have proved more intractable, or received 
more scholarly attention, than the depressed employment status 
of black Americans. The statistics are by now familiar . . . .  
Discrimination has often been assumed to be at the root of the 
problem. Title VII, by outlawing discrimination, was to 
improve substantially the employment prospects of blacks.

Developments in the Law -  Employment Discrimination and Title VII o f the 

Civil Rights Act o f 1964, 84 Harv. L. Rev. 1109, 1111 (1971). The 

legislative sponsors of the bill that eventually became Title VII repeatedly 

voiced their concerns that widespread employment discrimination was 

leading to rampant unemployment and low wage earnings among blacks and 

was having “the effect of severely retarding the economic standards of the 

[black] population.” Merrick T. Rossein, Employment Discrimination Law 

and Litigation §1-4, at 1-28 n. 27 (2001) (quoting remarks of Sen. 

Humphrey). Members of Congress understood that discrimination severely

15



erodes economic opportunity by limiting access to jobs and by creating 

debilitating work environments that demoralize and destabilize minority 

workers already living at a subsistence level. The key to improving 

economic opportunity for African Americans and other racial minorities, 

Congress determined, was to create protections against racial discrimination.

Courts consistently have recognized this objective in interpreting Title 

VII. The United States Supreme Court has said that the purpose of Title VII 

is “to achieve equality of employment opportunities,” Griggs v. Duke 

Power Co., 401 U.S. 424, 429 (1971) -  see also Johnson v. Transportation 

Agency, 480 U.S. 616, 630 (1987) (Title VII “should not be read to thwart..

. efforts” to further its “purpose of eliminating the effects of discrimination 

in the workplace.”) -  and to “break down old patterns of racial segregation 

and hierarchy.” United Steelworkers v. Weber, 443 U.S. 193, 208 (1979). 

See also McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 358 (1995) 

(“Congress designed the remedial measures [in Title VII] to serve as a ‘spur 

or catalyst’ to cause employers ‘to self-examine and to self-evaluate their 

employment practices and to endeavor to eliminate, so far as possible, the 

last vestiges’ of discrimination.”) (quoting Albemarle Paper Co. v. Moody, 

422 U.S. 405, 417-18 (1975)); Pullman-Standard v. Swint, 456 U.S. 273, 

276 (1982) (“Title VII is a broad remedial measure, designed to ‘assure

16



equality of employment opportunities.’ . . . The Act was designed to bar not 

only overt employment discrimination, ‘but also practices that are fair in 

form, but discriminatory in operation.’”) (quoting Int 7 Bhd. o f Teamsters v. 

U.S., 431 U.S. 324, 348-49 (1977)); County o f Washington v. Gunther, 452 

U.S. 161, 178 (1981) (“a ‘broad approach’ to the definition of equal 

employment opportunity is essential to overcoming and undoing the effect 

of discrimination”) (quoting S. Rep. 867, 88th Cong., 2d Sess. 12 (1964)); 

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800-01 (1973) (“The 

language of Title VII makes plain the purpose of Congress to assure equality 

of employment opportunities and to eliminate those discriminatory practices 

and devices which have fostered racially stratified job environments to the 

disadvantage of minority citizens . . . Title VII tolerates no racial 

discrimination, subtle or otherwise.”).

Courts have observed that Title VII should be enforced “to rid from 

the world of work the evil of discrimination because of an individual’s race, 

color, religion, sex, or national origin,” Armhruster v. Quinn, 711 F.2d 1332, 

1340 (6th Cir. 1983), and to prevent employers from “exerting any power 

[they] may have to foreclose, on invidious grounds, access by any individual 

to employment opportunities otherwise available to him, Sibley Memorial 

Hospital v. Wilson, 488 F.2d 1338, 1341 (D.C. Cir. 1973). The Fifth Circuit

17



compellingly articulated this point in Rogers v. EEOC, 454 F.2d 234 (5th Cir.

1971):

[Title VIPs] language evinces a Congressional intention to 
define discrimination in the broadest possible terms . . . .  We 
must be acutely conscious of the fact that Title VII . . . should 
be accorded a liberal interpretation in order to effectuate the 
purpose of Congress to eliminate the inconvenience, unfairness, 
and humiliation of ethnic discrimination . . . .  One can readily 
envision working environments so heavily polluted with 
discrimination as to destroy completely the emotional and 
psychological stability of minority group workers . . . Title VII 
was aimed at the eradication of such noxious practices.

454 F.2d at 238.

By denying Title VII coverage to WEP workers — among the most 

vulnerable of the City’s low-wage population ~ the district court’s ruling 

threatens their ability to achieve economic self-sufficiency. As with Title 

VII, one of the primary goals of welfare reform ostensibly is to promote 

economic independence. See 42 U.S.C. § 602(a)(l)(A)(i). Yet, by 

excluding WEP workers from the principal federal civil rights law barring 

employment discrimination, the lower court has relegated them to the status 

of a class to be permanently exploited and cast out on the social and 

economic margins of our society.

18



B. The district court’s ruling contravenes the purpose of Title VII 
by failing to account for plaintiffs’ actual work experience -  as 
pled in their complaints -  and instead focusing on artificial 
criteria to define the plaintiffs’ employment status.

In determining the applicability of Title VII, the district court focused 

its inquiry on whether Plaintiffs received ‘“direct or indirect remuneration’” 

from the City. (JA 73) (<citing O ’Connor v. Davis, 126 F.3d 112, 116 (2d 

Cir. 1997)). On a bare record and without affording any discovery, the court 

concluded that Plaintiffs were not “employees” for Title VII purposes 

because they “did not receive employment-related benefits.” (JA 73). The 

court simply discounted Plaintiffs’ welfare benefits, which it determined 

were not “wages.” Id.

The court erred. Ample case law in this Circuit establishes that Title 

VII applies to workers who receive an economic benefit in exchange for 

their services. See generally Brief of Amici National Employment Law 

Project, el al. in Support of Plaintiff-Appellant Norma Colon. The benefits 

received by WEP workers plainly satisfy these criteria. See id. WEP 

workers perform essentially the same work as that done by the City s 

employees — so much so that the City has reduced its municipal work force 

in reliance on their labor -- for payment that enables them to pay their rent, 

clothe themselves, and feed their families. The district court s decision

19



ignores this reality and instead elevates form over substance by relying on 

superficial labels to describe their compensation. Its finding (effectively as a 

matter of law) that WEP participants can never be employees under Title VII 

defies common sense, particularly given their role in supplementing and, 

frequently, supplanting other City employees. See infra, at Section I.

Moreover, the district court’s decision is incongruous with a body of 

Title VII cases that have broadly interpreted the statute to cover 

nontraditional, indirect employment relationships. It would be ironic if 

WEP participants -  who provide valuable services to the City in exchange 

for their benefits -  were denied Title VII coverage that has been extended to 

a less traditional class of workers. For example, in a long line of cases 

beginning with Sibley Memorial Hospital v. Wilson, 488 F.2d 1338 (D.C. 

Cir. 1973), courts have found cognizable Title VII claims brought by 

independent contractor plaintiffs who are not employed by the defendant, 

but whose access to employment defendant controls. In Sibley Hospital, the 

Court of Appeals for the District of Columbia determined that a private male 

nurse who was compensated by patients could maintain a Title VII action 

against the hospital where he worked to challenge hospital policies that had 

blocked him from offering nursing services to female patients. The court 

reasoned that it would defeat the purpose of Title VII

20



[t]o permit a covered employer to exploit circumstances 
peculiarly affording it the capability of discriminatorily 
interfering with an individual’s employment opportunities with 
another employer, while it could not do so with respect to 
employment in its own service, [and that to do so] would be to 
condone continued use of the very criteria for employment that 
Congress has prohibited.

Id. at 1341. A number of circuit and district courts have adopted this 

approach. See, e.g., Sherman v. Burke Contracting, Inc., 891 F.2d 1527, 

1532 (11th Cir.), cert, denied, 498 U.S. 943 (1990); Gomez v. Alexian Bros. 

Hosp., 698 F.2d 1019, 1021 (9th Cir. 1983); Diana v. Schlosser, 20 F. Supp. 

2d 348, 350-53 (D. Conn. 1998); Moldand v. Bil-Mar Foods, 994 F. Supp. 

1061, 1073 (N.D. Iowa 1998); Pelech v. Klaff-Joss, L.P., 815 F. Supp. 260, 

263 (N.D. 111. 1993); King v. Chrysler Corp., 812 F. Supp. 151, 153 (E.D. 

Mo. 1993).

This Circuit followed Sibley Hospital in Spirt v. Teachers Ins. & 

Annuity Ass’n, 691 F.2d 1054, 1063 (2d Cir. 1982), vacated on other 

grounds, 463 U.S. 1223 (1983). In Spirt, this Court determined that a 

college professor could maintain a Title VII action against third-party 

retirement annuity plans, used by her employer, on the grounds that they 

employed sex-segregated mortality tables in calculating retiree benefits. 

Acknowledging that the “[p]laintiff clearly [was] not an employee of [the

21



defendant] in any commonly understood sense,” this Court nevertheless 

went on to observe that:

[I]t is generally recognized that “the term ‘employer,’ as it is 
used in Title VII, is sufficiently broad to encompass any party 
who significantly affects access of any individual to 
employment opportunities, regardless of whether that party may 
technically be described as an “‘employer’” of an aggrieved 
individual as that term has generally been defined at common 
law.’”

691 F.2d at 1063 (<quoting Vanguard Justice Society, Inc. v. Hughes, 471 F. 

Supp. 670, 696 (D. Md. 1979)). Because the retirement plans were “so 

closely intertwined” with her employer, were mandatory for tenured faculty 

(like plaintiff), and “share[d] [with plaintiffs employer] in the 

administrative responsibilities” of managing the plans, this Court deemed 

them to be an “employer” for purposes of Title VII. Id.

Subsequently, in Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235 

(2d Cir. 1995), this Court held that a parent corporation could be held liable 

for the discriminatory conduct of its subsidiary’s employees. In assessing 

the “degree of interrelationship between the two entities” sufficient to hold 

the parent liable, the Court adopted a four-part test that emphasized the

22



degree of control exercised by the parent corporation over the labor relations 

of its subsidiary. Id. at 1241.7

The Supreme Court itself has eschewed rigid interpretations of Title 

VII. In Robinson v. Shell Oil Co., 519 U.S. 337 (1997), for example, the 

Court interpreted the term “employee” to include “former” employees, 

recognizing that “to hold otherwise would effectively vitiate much of the 

protection afforded by [Title VII].” 519 U.S. at 345-46. In Meritor Savings 

Bank v. Vinson, A ll U.S. 57 (1986), the Court concluded that the provision 

barring discrimination in the “terms, conditions, or privileges of 

employment” “evince[d] a congressional intent ‘to strike at the entire 

spectrum of disparate treatment of men and women’ in employment,” id. 

{citing Los Angeles Dept, o f Water and Power v. Manhart, 435 U.S. 707, 

707 n. 13 (1978)), and, therefore, encompassed hostile environment claims.8

7 The Fifth, Sixth, and Eighth Circuits have followed this approach in 
determining a parent corporation’s liability in Title VII cases. Cook, 69 F.3d 
at 1241 (citing cases); see also Trevino v. Celanese Corp., 701 F.2d 397, 
404 (5th Cir. 1983) (critical question is “[w]hat entity made the final 
decisions regarding employment matters related to the person claiming 
discrimination?”).

8 In a related employment context, the Supreme Court has concluded 
that Section 1981 covers discrimination against whites, despite the statute’s 
literal language providing that “all persons . . . shall have the same right. . . 
to make and enforce contracts . . .  as is enjoyed by white citizens. . . . 
McDonald v. Santa Fe Transportation Co., 427 U.S. 273, 285-86 (1976). 
Similarly, this Court has broadly construed Section 1981 to cover at-will

23



An inquiry into the practical realities of WEP workers’ job activities 

and responsibilities -- rather than a blanket rule based on naked assumptions 

and artificial criteria -- should determine the cognizability of Title VII 

claims. It would be cruelly ironic if the City’s WEP program -  which is 

intended to provide participants with real world work experience did not also 

provide the same real world protection afforded others who do the same or 

similar work. Title VII should be construed to give effect to the labor 

performed by WEP workers -  often as a substitute for more highly paid City 

employees -- and to require employers who use WEP labor not to 

discriminate against or harass WEP workers, in the same way that they are 

barred from discriminating against or harassing others who perform the 

same or similar work in the same workplace.

employment relationships, in part based on the recognition that to exclude 
at-will employees from coverage “would severely weaken the statute . . .  and 
would deny protection from workplace discrimination to a significant 
number of people.” Lauture v. IBM Corp., 216 F.3d 258, 263 (2d Cir. 
2000). See also Fadeyi v. Planned Parenthood Ass’n o f Lubbock, Inc., 160 
F.3d 1048, 1052 (5th Cir. 1998). The reasons for extending protection to 
WEP workers in the Title VII context are no less compelling.

24



IV. THE DISTRICT COURT’S RULING, IF NOT OVERTURNED, 
WOULD CREATE A SUBCLASS OF MOSTLY AFRICAN- 
AMERICAN AND LATINO WORKERS WHO ARE UNPROTECTED 
BY FEDERAL CIVIL RIGHTS LAWS BARRING EMPLOYMENT 
DISCRIMINATION ON THE BASIS OF RACE, SEX, OR 
NATIONAL ORIGIN AND PROHIBITING SEXUAL HARASSMENT

In the absence of Title VII coverage, WEP workers -  the 

overwhelming majority of whom are African-American and Latino -  would 

be unprotected by federal civil rights laws prohibiting employment 

discrimination on the basis of race, sex, and national origin and barring 

sexual harassment.9 None of the federal civil rights laws enumerated in the 

Personal Responsibility and Work Opportunity Reconciliation Act 

(“PRWORA”), Pub. L. No. 104-93, 110 Stat. 2105 (1996) are aimed 

specifically at eliminating discrimination in employment. Rather, their 

primary purpose is to bar discrimination in the administration of government 

programs or activities. See 42 U.S.C. §608(d) (identifying The Age 

Discrimination Act of 1975, 42 U.S.C. §6101 et seq.\ Section 504 of the

9 According to the City’s data, more than 68% of the City’s adult public 
assistance recipients are women, and more than 80% are Hispanic or non- 
Hispanic black. See Human Resources Administration, NYC Public 
Assistance Fact Sheet (available at
http://www.nvc.gov/html/hra/pdf/hrafact Oct 2001.pdf). The City does not 
report the gender and racial demographics for public assistance recipients 
who are WEP workers. However, there is no reason to suspect that the 
demographics of the WEP population differ from that of the general public 
assistance population.

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Rehabilitation Act of 1973, 29 U.S.C. §794; The Americans with 

Disabilities Act of 1990, 42 U.S.C. §12101 et seq.; Title VI of the Civil 

Rights Act of 1964, 42 U.S.C. §2000d et seq.).

Of the statutes identified in Section 608(d), only Title VI bars 

discrimination on the basis of race and national origin, see 42 U.S.C. 

§2000d, and even Title VI has limited applicability: it only prohibits 

employment discrimination in federally-funded programs that serve 

primarily to provide employment. See, e.g., Ass ’n Against Discrimination in 

Employment, Inc. v. City o f Bridgeport, 647 F.2d 256, 276-77 (2d Cir. 1981) 

(Title VI claims dismissed because no evidence presented that creation of 

employment opportunities was primary objective of the federal assistance), 

cert, denied, 455 U.S. 988 (1982). None of the statutes, including Title VI, 

bar gender discrimination. Id. Further, private causes of action for disparate 

impact are not available under Title VI, see Alexander v. Sandoval, 532 U.S. 

275 (2001), as they are under Title VII, see Griggs, 410 U.S. at 436.

The 1997 amendment to the PRWORA, commonly known as the 

Welfare-to-Work Act, includes a nondiscrimination provision prohibiting 

gender discrimination, but only as to “work activities engaged in under a 

program operated with funds provided under [the Act itself].” See 42 U.S.C.

26



§603(a)(5)(I)(iii).10 The Act, therefore, does not cover all workfare workers 

-  and would not cover the plaintiffs in this action — just those participating 

in Welfare-to-Work funded programs. Id. Moreover, the remedies available 

to gender discrimination plaintiffs even in Welfare-to-Work programs are far 

narrower than those afforded under Title VII. See 42 U.S.C. 

§603(a)(5)(I)(iv). The grievance procedure provides an administrative 

hearing, rather than expressly granting a private right of action in federal 

court. Id. In contrast to Title VII, neither compensatory nor punitive 

damages are identified as possible remedies. Id. Complainants are not 

afforded the right to a jury of their peers, id., and the statute does not provide 

attorneys’ fees, id., all options under Title VII.11

This provision states in full:

In addition to the protections provided under the provisions of 
law specified in section 608(c) of this title, an individual may 
not be discriminated against by reason of gender with respect to 
participation in work activities engaged in under a program 
operated with funds provided under this paragraph.

42 U.S.C. §603(a)(5)(I)(iii). The reference to §608(c) (and not §608(d)) 
appears to be a typographical error.

It is little consolation that a complainant might be able to pursue a 
claim under 42 U.S.C. § 1983. It is true that in enacting Title VII, Congress 
did not intend to limit a plaintiffs right to bring a Section 1983 suit against 
state and municipal officers in the employment discrimination context. See, 
e.g., Annis v. County o f Westchester, 36 F.3d 251, 254 (2d Cir. 1994). But,

27



The consequences of having sparse and inadequate civil rights 

protection would be particularly acute for WEP workers, who tend to be 

intensely poor, often lack formal education, and have severely limited 

employment options. In essence, this population is a captive, vulnerable

unlike Title VII, Section 1983 does not have the advantage of an 
administrative remedy, which may be critical for poor complainants who 
lack the resources to bring litigation.

Moreover, it is unclear that WEP workers subjected to employment 
discrimination would have an adequate remedy at state law. New York 
Social Services Law Sec 331(3) provides merely that:

[n]o social services district shall, in the exercising of the 
powers and duties established in this title, permit 
discrimination on the basis of race, color, national origin, 
sex, religion or handicap, in the selection of participants, 
their assignment or reassignment to work activities and 
duties, and the separate use of facilities or other treatment 
of participants.

Unlike Title VII, this provision is not aimed at barring discrimination in 
employment; and the range of procedural protections and remedies is more 
limited. First, it is not clear that this statute confers a private right of action. 
At best, it appears that a WEP worker could file a grievance with the local 
social services district where she is assigned. If dissatisfied with the results 
of the conciliation of the grievance, she could appeal to the State for a fair 
hearing. See generally 12 NYCCR Sec. 1300.11(b) (regulations issued by 
New York State Department of Labor for conciliation procedure); 12 
NYCCR Sec. 1300.11(b)(6) (right to a fair hearing). She also presumably 
could bring an Article 78 proceeding, NYCPLR §7801 et seq., but she would 
be limited to reinstatement of benefits, not the full panoply of remedies 
afforded by Title VII, see, e.g., Davidson v. Capuano, 792 F.2d 275, 278-79 
(2d Cir. 1986) (damages for civil rights violations not available in Article 78 
proceedings).

28



workforce that, if denied Title VII protections, would be left without the 

resources necessary to escape discriminatory, harassing, and abusive 

conduct in the workplace.

29



CONCLUSION

For the foregoing reasons, amici respectfully urge the Court to reverse 

the decision below.

Respectfully submitted,

Juan Cartagena 
Risa E. Kaufman 
COMMUNITY SERVICE 
SOCIETY OF NEW YORK
105 E.22nd Street
New York, New York 10010
(212) 254-8900

Foster Maer 
Evette Soto-Maldonado 
PUERTO RICAN LEGAL 
DEFENSE & EDUCATION 
FUND, INC.
99 Hudson Street, 14th floor 
New York, New York 10013 
(212)219-3360

Elaine R. Jones
Director-Counsel 

Norman J. Chachkin 
James L. Cott 
Elise C. Boddie 
NAACP LEGAL DEFENSE 
& EDUCATIONAL 
FUND, INC.
99 Hudson Street, Suite 1600 
New York, New York 10013 
(212) 965-2200

Dated this the 27th day of September, 2002.

30



RULE 32(a)(7)(B)(i) CERTIFICATE OF COMPLIANCE 

The undersigned hereby certifies that this brief complies with the 

type-volume limitations of R.32(a)(7) and R. 29(d) of the Federal Rules of 

Appellate Procedure. Relying on the word count of the word processing 

system used to prepare this brief, I hereby represent that the amicus brief of 

NAACP Legal Defense and Educational Fund, Inc., Community Service 

Society of New York, and Puerto Rican Legal Defense and Education Fund, 

Inc. in support of Plaintiff-Appellant United States of America, Plaintiff- 

Appellant Norma Colon, and Intervenor-Plaintiff-Appellant Tammy Auer 

contains 6,277 words, not including the corporate disclosure statement, table 

of contents, table of authorities, and certificates of counsel, and is therefore 

within the word limit for amicus briefs under Fed. R. App. P. 29(d) and Fed. 

R. App. P. 32(a)(7)(B).

COMMUNITY SERVICE 
SOCIETY OF NEW YORK
105 E. 22nd St.
New York, NY 10010

Dated this the 27th day of September, 2002.

31



CERTIFICATE OF SERVICE

I, Risa E. Kaufman, hereby certify that on this 27th day of September,

2002, I served the within brief of amici curiae NAACP Legal Defense and

Educational Fund, Inc., Community Service Society of New York, and

Puerto Rican Legal Defense and Education Fund, Inc. in support of Plaintiff-

Appellant United States of America, Plaintiff-Appellant Norma Colon, and

Intervenor-Plaintiff-Appellant Tammy Auer, on the following persons via

FedEx Priority Overnight Delivery Service:

Mordechai Newman 
Assistant Corporation Counsel 
100 Church Street, Room 6-193 
New York, NY 10007

Donna Murphy
Attorney for New York City Housing Authority 
250 Broadway 9th, Floor 
New York, NY 10007

Sarah S. Normand 
Neil Corwin 
U.S. Attorney's Office 
One St. Andrew's Plaza 
New York, NY 10007

Marc Cohan
Anne Pearson
Welfare Law Center
275 Seventh Avenue
New York, New York 10001

32



Daniel D. Leddy, Jr.
5 Parkview Place
Staten Island, NY 10310-3128

Philip Taubman 
Taubman & Kimelman 
30 Vesey Street, 6th Floor 
New York, NY 10007

Jack Tuckner
Tuckner, Sipser, Weinstock & Sipser, LLP 
120 Broadway, 18th Floor 
New York, NY 10271

Kenneth W. Richardson 
305 Broadway, Suite 1100 
New York, NY 10007

Jennifer Brown 
Yolanda Wu 
Timothy Casey
NOW Legal Defense and Education Fund 
395 Hudson Street, 5th FI.
New York, NY 10014

Ris
COMMUNITY SERVICE 
SOCIETY OF NEW YORK
105 E. 22nd St.
New York, NY 10010 
(212) 254-8900

33