Pubdate: Sun, 10 Sep 2000
Source: New York Times (NY)
Copyright: 2000 The New York Times Company
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Author: Somini Sengupta

WORKFARE VICTORY FOR A RECOVERING ADDICT HOLDS PROMISE FOR OTHERS

Meet Theresa Banchieri: At 36, she has been on welfare her entire adult
life, and for much of that time she's also been a drug addict. Sometimes she
stripped and occasionally she stole to support a heroin habit.

But when New York City's stringent new welfare rules forced her to
work 31 hours a week cleaning buildings for her $234 welfare check
every two weeks, Ms. Banchieri says, she saw it as an opportunity. She
hoped that she would soon get a real job, and she told everyone she
knew.

"I bragged about it," she said.

Then another, seemingly conflicting, city policy kicked in.

Ms. Banchieri was barred from participating in the Work Experience
Program - as the workfare program is known - with the city's
Department of Sanitation because, she was told, she was on methadone,
a synthetic opiate widely regarded as the most effective treatment to
curb the craving for heroin.

The news came from an agency official running the orientation session
for workfare participants one morning in April 1999.

"She said, `No, I'm sorry, honey, you can't work for the Department of
Sanitation,' " Ms. Banchieri recalled. "I started crying. I actually
started crying."

Worse than that, she relapsed, for the first time in a year. She
sniffed heroin, smoked crack, popped pills and finally landed in jail
on a robbery charge; she was released on probation, including
mandatory drug treatment. "It messed me up," she said.

One city agency was telling her to work for her welfare check. Another
was saying it would not have her. But if confused, Ms. Banchieri was
not completely without luck. She found a lawyer, and with the lawyer's
help filed a complaint with the federal Equal Employment Opportunity
Commission, charging discrimination on the basis of disability - in
Ms. Banchieri's case, a history of drug addiction.

On Aug. 31, victory was hers: the commission's district director,
Spencer H. Lewis Jr., ruled that the city had violated the Americans
With Disabilities Act, which considers people with a history of drug
or alcohol abuse to be a protected class under the law. The commission
rejected the Sanitation Department's argument that Ms. Banchieri's
schedule for methadone treatments would preclude her from working a
regular shift.

The quiet triumph went beyond one instance. As a result of the ruling,
the Department of Sanitation reversed its ban on methadone patients'
participating in its workfare program.

"It's a tremendous victory for people who are in her position, who
want to take advantage of W.E.P.," said her lawyer, Corinne Carey of
the Urban Justice Center, a nonprofit group that works on behalf of
the poor. "It shed light on a policy that was never formal but based
on an individual's prejudice against methadone. That's often how
discrimination works."

Commonly called the hard to employ, hardened addicts like Ms.
Banchieri are an increasingly important focus of welfare reform in
places like New York City. Under Mayor Rudolph W. Giuliani's welfare
regulations, all welfare recipients - unless they can prove that their
disability is so severe that they cannot work - must work for their
benefits. And many of the more easily employable or resourceful have
either found work or simply been removed from the rolls.

Thus many of the city agencies that take on workfare clients will have
to contend with many more recovering addicts like Ms. Banchieri. That
is why her victory could have wider implications, said Kate O'Neill, a
senior vice president and lawyer at the Legal Action Center, a
nonprofit group with a long history of representing methadone patients
in employment discrimination cases nationwide.

"What a lot of that population needs are entry-level jobs and entry-
level jobs at state and local agencies," Ms. O'Neill said. "To the
extent that there continue to be either blanket policies or policies
applied in a way to exclude persons on methadone, the government is
really shooting itself in the foot."

Today, about 1,500 of the city's 29,400 workfare employees are on
methadone maintenance treatment alone, and many more are in treatment
for other kinds of addiction, according to a spokeswoman for the
city's Human Resources Administration.

Notwithstanding the mayor's widely publicized opposition to methadone
maintenance - he proposed abolishing it altogether two years ago, only
to be convinced otherwise by public health officials - there is no
citywide ban against methadone patients' participating in workfare.
Each agency has its own rules.

The Parks and Recreation Department, the largest employer of welfare
recipients, accepts methadone patients, for instance. So do the
Department of Citywide Administration Services and the Human Resources
Administration, the other two large city agencies where welfare
recipients work.

The Housing Authority does not inquire about its welfare workers'
treatment history, but if the information is volunteered, the agency
requires methadone patients to receive treatment before their 8 a.m.
shifts begin. Howard Marder, an authority spokesman, said he did not
know whether anyone had been rejected from the program because of
scheduling conflicts.

In fact, that was the Sanitation Department's initial objection to Ms.
Banchieri. Agency lawyers had argued that she had been excluded
because methadone patients usually have to pick up their medications
every day between 8 a.m. and 2 p.m., thus creating a scheduling conflict.

In his Aug. 31 decision, Mr. Lewis called this "a pretext," noting
that the agency had not specifically asked when Ms. Banchieri had to
visit a methadone clinic (at the time, anytime between 7 a.m. and 2:30
p.m., making it possible for her to work a day or evening shift).

It is not unusual for government employees who are methadone patients
to file - and win - employment discrimination cases. But Ms.
Banchieri's case m ay be the first such ruling with respect to welfare
recipients. Neither her lawyer, Ms. Carey, nor those with the Legal
Action Center have heard of similar cases.

It is the second federal ruling to find that welfare recipients
enrolled in city-mandated work programs are, in effect, workers, and
as such protected by antidiscrimination laws. Last October, the Equal
Employment Opportunity Commission ruled that the Giuliani
administration violated federal law when it turned away women who had
complained of being sexually harassed while working for their welfare
benefits.

How many of the city's 32,000 methadone patients are on public
assistance is unknown, though their numbers are believed to be high;
only 20 percent of the city's methadone patients are employed, state
substance abuse officials say. Under Mr. Giuliani's welfare policy,
unless recipients can prove that they are so severely disabled that
they cannot be employed, they must work for their welfare check or
face sanctions, including losing their benefits altogether.

That is what makes Ms. Banchieri's case all the more odd, she and her
lawyer believe. Welfare recipients with a long history of substance
abuse routinely wander into Ms. Carey's office seeking exemptions from
the work requirement; unlike Ms. Banchieri, they are nowhere near
ready to be employed, Ms. Carey contends.

"Here's someone who has the capability and the desire to go back to
work and change her life around, and the city has discriminated
against her because of her drug treatment," she said.

Indeed, Ms. Banchieri wanted to work. She knew a few friends who had
landed full-time jobs after a few months in the Work Experience
Program. She reasoned that a city job would look good on a now blank
resume. She figured it would help keep her from getting high.

"Staying home is a drug addict's first enemy. First thing you want to
do is get high," she explained. "Finally I thought something was going
right in my life. Your head gets chopped off when you're doing
something positive."

This year, the Sanitation Department began accepting methadone
patients in its Work Experience Program. As for its paid full-time
sanitation workers, the agency now considers only those who have
successfully completed a year in methadone treatment.

That policy change came in 1998, after the Legal Action Center filed a
discrimination complaint with the State Division of Human Rights,
challenging the old rule, which required three years of treatment and
imposed a daily dosage limit of 50 milligrams of methadone. Advocates
had contended that dosage decisions should be left to doctors.

"We re-examined the policy on W.E.P. participants in light of our
policy for full-time employees, and we wanted to make the two more
consistent," said Steven W. Lawitts, the agency's deputy commissioner
for administration.

Mr. Lawitts estimated that there were fewer than 10 full-time
sanitation workers on methadone treatment. He said he did not know how
many workfare workers were on methadone.

But Ms. Banchieri's immediate future remains hazy.

Ms. Banchieri, who lives with her daughter at her mother's home in
Laurelton, Queens, has given up methadone treatment. She says she does
not want to risk losing another job assignment. She attends outpatient
drug treatment four days week. She also gets acupuncture to dull the
cravings. But despite her enthusiasm to work, she is still not
participating in a workfare program.

Recently, the Sanitation Department ordered her into a daytime
street-cleaning assignment - a job she does not particularly want.
More important, that assignment now conflicts with her court-ordered
drug treatment schedule.

"I don't go to drug treatment, I go to jail," she said.
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