UFT sues Tweed for age discrimination

by Dorothy Callaci

Apr 10, 2008 10:00 AM

Case alleges that, even with 2007 ‘hold-harmless’ agreement, senior teachers in ATR pool are victims of system’s new funding formula

The UFT filed an age discrimination lawsuit in State Supreme Court on April 7 alleging that the more than 700 teachers in the Absent Teachers Reserve (ATR) are victims of the Department of Education’s year-old school funding system that, even with an April 2007 agreement with the union to mitigate it, created a financial disincentive for principals to hire senior teachers.

The weighted student funding formula unveiled by Chancellor Joel Klein in January 2007 gave principals full responsibility for school budgets, including the cost of teacher salaries.

Under pressure from a coalition of the union, parents and community groups last spring, the DOE agreed to a “hold- harmless” agreement that when an older teacher resigned or retired, the school would retain the equivalent of that teacher’s salary in its budget, giving the principal the ability to hire another senior teacher at equal cost. The UFT retained its right to grieve the DOE’s unilateral change in the negotiated open-market transfer plan if the transfer data showed evidence of bias against senior teachers.

The “hold-harmless” agreement did alleviate some of the impact of the new funding system on senior teachers. Klein, however, has recently indicated a readiness to abandon that agreement in light of the budget problems.

The lawsuit charges that the new funding system, even with the ameliorating effects of the “hold-harmless” agreement, violated New York City Human Rights Law by putting older teachers at a disadvantage.

By hiring newer teachers, a principal can save tens of thousands of dollars. The lawsuit argues that the DOE essentially shifted from an age-neutral system to one that has a disparate impact on older teachers.

While senior teachers lose the hiring contest in disproportionate numbers, the DOE is losing, too, the UFT contends. According to the union’s calculations, the DOE would have saved $55 million had it used qualified and experienced teachers in the ATR pool to fill vacancies.

“The DOE could have significantly mitigated its budget problems simply by enabling these satisfactorily rated ATRs to fill new vacancies this year,” said UFT President Randi Weingarten. “These are good teachers, mostly from closing schools. But rather than create a win-win situation, the system — despite repeated requests — refused to deal with these issues.”

Teachers end up in the ATR pool, where they are supposed to work as day-to-day subs or cover long-term vacancies while continuing to receive full salary and benefits, when they are excessed — through no fault of their own — when a school closes, enrollment changes and programs are eliminated and they are not able to find another full-time, permanent position. Under the 2005 contract, which codified the ATR concept, all teachers in the ATR pool have rock-solid job security.

After a year of monitoring, including a request under the Taylor Law for the DOE’s data, it has become obvious that even with the 2007 “hold-harmless” agreement, there is a disproportionate number of older teachers in the ATR pool. The average age of ATRs has increased because younger teachers who get excessed seem to have an easier time finding new positions through the open-market transfer plan than older teachers.

According to DOE data cited in the lawsuit, 81 percent of teachers in the ATR pool are over 40 years of age, compared to 57 percent of the entire public school pedagogical staff. That difference, the UFT argues, is a direct result of hiring practices.

At several impact bargaining sessions starting last September, the UFT asked the DOE for a moratorium on new hires until a permanent position in the appropriate license area had been secured for every ATR who wants one.

Most ATRs are on the central payroll so principals who have ATRs covering short- or long-term absences have little incentive to hire them.

“Our primary goal is to ensure that any displaced educator who wants a position has the opportunity to secure one. We don’t want people forced into vacancies, but we do want them to have real choices,” said Weingarten.

“Most ATRs want to get back into the classroom teaching in their license areas, accruing school seniority and organizing their own lesson plans instead of providing full-time substitute coverage for different absent teachers every day,” she said. “It’s a waste of talent and expertise.”