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Layoffs Target Disabled Workers?

In a budget-cutting move, the City of New York eliminated a job position that was filled by disabled workers, saying technology made it obsolete. The workers, charging discrimination, say the city is violating its own Human Rights Law.

Monday, May 23, 2011
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Disabled job candidates have a difficult time getting hired and they may be more at risk of losing their jobs when hard times hit.

Such was the case in New York, where 37 disabled workers were laid off when the city's Department of Finance eliminated any jobs with the Office Machine Aide job title. The job was eliminated because technology has made it obsolete, according to the city.

The workers are suing the city, Finance Commissioner David Frankel and Mayor Michael Bloomberg, charging them with violating the city's Human Rights Law by eliminating the entry-level job title, since the Office Machine Aide job has historically been filled by disabled individuals.

Seventy-eight of the laid-off aides are disabled; some have transferred to other positions.

"By targeting the Office Machine Aide title for layoff, to the exclusion of other clerical titles, some of which performed job duties essentially the same as those performed by the Office Machine Aides, Defendants disparately treated plaintiffs based on their disability," states the suit.

"We believe strongly when all the facts come out that the decision will be different. The facts will show this is a violation [of the Human Rights Law]," says Steven Sykes, senior assistant general counsel for the American Federation of State, County and Municipal Employees District Council 37 of the AFL-CIO, whose attorneys are representing the laid-off workers.

The aides were among 129 persons laid off by the Department of Finance in a budget-cutting move. The position pays about $35,000 and includes data entry, clerical work and mail, and assisting the public.

Some of the aides had been hired through FedCap, a nonprofit disability program. And 28 of the 37 plaintiffs had been hired under the city's 55-a program, named for section 55-a of the city's Civil Service law, which gives the entry-level civil-service jobs to the disabled without requiring a competitive exam.

In denying a preliminary injunction on May 6, New York State Supreme Court Judge Geoffrey Wright wrote that the traditional tasks of office machine aides are "diminishing."

"The work of an Office Machine Assistant can now be done by the holders of other job titles while sitting at their desks and using computers. ... The binding of certain books, once the domain of the Office Machine Assistant, is now an obsolete task ... ," he wrote.

"When there are layoffs anywhere, entry level are the first to go," says Frank Pennisi, who chairs the New York Association on Independent Living and is with the Southern Tier Independence Center in Binghamton, New York. "We always encourage 55-a [participants] to advance and take the [civil service] test."

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"The [disabled] are often folks who suffer the most in tough times," says Curt Decker, executive director of the National Disability Rights Network in Washington. "They are entry level, their jobs may be contracted out and there is not a ton of room for promotion."

He commended the finance department for hiring the disabled in the first place.

"The good news is, this is an attempt to provide integrated work for individuals who are too often put in segregated, minimum-wage jobs. ... Employment for the disabled is a serious problem, but you don't want to make work to keep people on the payroll when there is no need for the job."

Employers can expect more such discrimination claims by disabled employees in the future, says Lawrence Lorber, a partner with the Proskauer firm in Washington.

"The number of ADA [Americans with Disabilities Act] claims has risen fairly significantly. ... Agencies are aggressively investigating and enforcing these laws, and private lawyers are finding out they can win them," Lorber says.

The reason there are more claims is that many states, and cities like New York, strengthened their disability laws in response to a ruling in 2000 by the U.S. Supreme Court, which took the teeth out of the ADA by limiting the definition of disabilities. Ironically, the ADA was amended in 2008 to broaden the federal definition.

"Now the feds have caught up," says Lorber. "What's happened, in that period, is there are expansive state laws, so the assumption is a state claim is easier to bring."

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