New York’s highest court, the New York Court of Appeals, has been asked to decide the question of whether the New York City Human Rights Law permits a claim of disability discrimination based solely on a perception of untreated alcoholism. Makinen v. City of New York, et. al., Docket Nos. 16-973-cv(L), 16-1080-cv (XAP) (2d Cir., May 22, 2017).

The case concerned two former New York City police officers who were referred by family members for counseling related to alcohol abuse. In fact, the two police officers were not alcoholics. The police officers sued the City of New York and others for disability discrimination under the New York City Human Rights Law (“NYCHRL”), arguing that the New York City Police Department regarded them as alcoholics, although they were not. Defendants sought dismissal because the plain text of the law limited protection to recovered or recovering alcoholics. Since the plaintiffs were neither, the defendants sought judgment in their favor both at summary judgment and post-trial.

The lower court, the Southern District of New York, held that individuals regarded as untreated alcoholics could bring a claim under NYCHRL, despite the law’s language limiting protections only to those alcoholics who had sought treatment. The lower Court reached this conclusion because analogous state and federal disability laws (the New York State Human Rights Law and the Americans with Disabilities Act) permit disability discrimination claims based on alcoholism, whether recovering or not, and specifically permit claims of “erroneously regarding” an individual to be a substance abuser (alcoholic) when he is not. The Second Circuit struggled to balance the facts that: (1) unlike state and federal law counterparts, the NYCHRL contains limiting language suggesting untreated alcoholics are not covered by the law; (2) the NYCHRL was created with the broad remedial purpose to provide plaintiffs comparable protections afforded under state and federal law; and, (3) the NYCHRL generally is construed “more liberally” than its state and federal counterparts. Because the Second Circuit could not “predict with confidence” how the New York Court of Appeals would reconcile these issues, it deferred decision on the appeal and cross-appeal and certified this question to the New York Court of Appeals: “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?”

Employers, especially those in New York City, will await the New York Court of Appeals’ determination of this issue. However, employers in all locations should be attuned to the unique legal issues associated with employees struggling with alcohol or drug addiction, regardless of whether the employee is in treatment or not, or whether the addiction is real or perceived. Employers should review policies and protocols so that they are equipped to deal with addiction (or perceived addiction) before these situations actually arise.