About Us  |  Contact Us

Whether NYCHRL precludes claim solely for perception of untreated alcoholism certified to NY high court

By Kathleen Kapusta, J.D.

In the absence of authority from New York courts, the Second Circuit found it could not predict with confidence how the New York Court of Appeals would reconcile the broad, remedial purpose of the NYCHRL with the language of a provision defining only “recovering” or “recovered” alcoholics as having a “disability.” Accordingly, the federal appeals court certified the following question to the state’s highest court: “Do sections 8-102(16)(c) and 8-107(1)(a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?” (Makinen v. City of New York, May 22, 2017, Lohier, R.).

The plaintiffs, two New York City police officers, were referred—by an ex-husband and an ex-boyfriend—to the NYPD’s internal counseling services unit for an alcoholism assessment. Although each received an alcohol-related diagnosis and was directed to undergo treatment, the parties subsequently agreed that neither were actually alcoholics. They subsequently sued the city and several individual defendants under the NYCHRL, the NYSHRL, and the ADA alleging discrimination based on a mistaken perception that they were alcoholics.

Contending that the plaintiffs were not (and were not perceived to be) recovered or recovering alcoholics, the defendants argued that their claims were barred by the plain text of the NYCHRL Section 8-102(16)(a). On summary judgment, and again on a post-trial motion after a jury verdict partly in favor of the plaintiffs, the district court held that individuals regarded as untreated alcoholics may state a claim under the NYCHRL because analogous claims are available under both the NYSHRL and the ADA.

Disability under the NYCHRL. On appeal, the Second Circuit noted that Section 8-107(1)(a) of the NYCHRL prohibits employment discrimination based on an “actual or perceived . . . disability.” Further, while the statute defines “disability” as “any physical, medical, mental or psychological impairment, or a history or record of such impairment,” in the case of alcoholism, Section 8-102(16)(c) narrows the definition so that disability “shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse.” Thus, said the court, in view of Section 8-102(16)(c), the question was whether a plaintiff may state a claim under Section 107(1)(a) if she is perceived to be an untreated alcoholic.

While the defendants argued that plain text of section 8-102(16)(c) forecloses such a claim, the plaintiffs countered that the limitation in that section applies only “in the case of alcoholism”—that is, only when a plaintiff in fact suffers from alcoholism, not when she is mistakenly perceived to be an alcoholic.

Tension. Observing that the Committee Report accompanying the passage of what would become Section 8-102(16)(c) explained that “only an individual who ‘is recovering and currently free of abuse’” is “entitled to the law’s protection,” the court found this to be in tension with the New York City Council’s stated intention of affording plaintiffs who sue under the NYCHRL all of the protection guaranteed by comparable provisions of state and federal law. Pointing out that the city council passed the Local Civil Rights Restoration Act of 2005 out of a concern that the NYCHRL had been “construed too narrowly to ensure protection of the civil rights of all persons covered by the law,” the court explained that it understood the Restoration Act to create a “one-way ratchet” requiring it to construe the NYCHRL “more liberally” than the NYSHRL and the ADA, which treat alcoholism as an impairment that can form the basis of a disability discrimination suit. Further, observed the court, both those statutes prohibit discrimination on the basis of a perceived impairment and neither is limited to recovering or recovered alcoholics.

The plaintiffs argued that because the NYSHRL and ADA prescribe a floor below which employee protections may not fall, the NYCHRL should not be interpreted to exclude untreated alcoholics. The court, however, recognized that neither the NYSHRL nor the ADA contains a similarly worded provision comparable to the NYCHRL’s limitation on the definition of disability in the form of alcoholism. “Insofar as the text of section 8-102(16)(c) specifically differs from that of its State and federal counterparts, we are arguably constrained by the text, since the ‘one-way ratchet,’ operates only ‘to the extent that such a construction is reasonably possible,’” the court explained, noting that it was unaware of any New York court decision addressing either the specific question at issue here or the analogous provision of the NYCHRL that on its face provides narrower protection for employees than is required under the NYSHRL or the ADA.

Certified. Not only did this weigh heavily in favor of certifying the question to the state high court, so too did the fact that the question presents important issues of New York law and policy as both Section 8-102(16) and the Restoration Act reflect policy judgments. A New York court should determine in the first instance which of these judgments ought to prevail in the event they conflict, the Second Circuit stated, noting further that “the question presented also broadly affects the viability of employer-sponsored rehabilitation programs in New York, has practical ramifications for the NYPD in particular, and is likely to recur.” Accordingly, the decision of the court below was reversed.