Why it matters
Does New York City law permit an employee to bring suit alleging disability discrimination on a perception of untreated alcoholism? The state’s highest court will provide an answer to this question, certified from the U.S. Court of Appeals for the Second Circuit. A pair of police officers was referred to the New York Police Department’s internal counseling services unit for an alcoholism assessment. Both received treatment, but the parties agreed neither was an alcoholic. The officers sued, asserting violations of city law, state law and the Americans with Disabilities Act based on disability discrimination. The employer countered that city law does not permit “regarded as” claims for untreated alcoholism, but the district court disagreed, analogizing to both state law and the ADA. The employer appealed, but the Second Circuit found itself unable to “predict with confidence” how the state’s highest court would rule. The law itself was intended to have a broad, remedial purpose, the panel noted, but on its face provides narrower protection for employees with regard to alcoholism than what is required under state law or the ADA. Given the uncertainty, the Second Circuit certified the question to the New York Court of Appeals.
New York Police Department officers for several years, Kathleen Makinen and Jamie Nardini were both referred to the internal counseling services unit, which offers treatment and rehabilitation for officers struggling with substance abuse. Each woman received an alcohol-related diagnosis and was directed to undergo treatment, but the parties agreed neither was actually an alcoholic.
The women filed suit, claiming that the NYPD and city of New York mistakenly perceived that they were alcoholics and discriminated against them on the basis of that perceived disability, in violation of the New York City Human Rights Law (NYCHRL), the New York State Human Rights Law (NYSHRL) and the ADA.
A district court judge granted partial summary judgment in favor of the defendants, and a jury rendered a verdict in favor of the plaintiffs on their NYCHRL claims, awarding compensatory and punitive damages. The defendants moved for a new trial and judgment as a matter of law, arguing that the NYCHRL does not extend to untreated alcoholism.
After the district court denied the motion, the defendants appealed to the U.S. Court of Appeals for the Second Circuit. The panel began with the language of the NYCHRL.
Section 8-107(1)(a) prohibits employment discrimination based on an “actual or perceived … disability,” with “disability” defined as “any physical, medical, mental or psychological impairment, or a history or record of impairment.” The statute also states that “[i]n the case of alcoholism,” the NYCHRL narrows the definition of “disability” in Section 8-102(16)(c) so that it “shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse.”
The defendants argued that the plain text of the statute foreclosed a “regarded as” discrimination claim for an untreated alcoholic, as only recovered or recovering alcoholics are defined as having a disability. The plaintiffs countered that the limitation applies only “in the case of alcoholism,” or only when a plaintiff in fact suffers from the disease and not when she is mistakenly perceived to be an alcoholic.
Considering the issue, the Second Circuit found tension between the language of the statute and the intent behind the NYCHRL, meant to afford plaintiffs all of the protections guaranteed by state and federal law. The city council even recently amended the statute to emphasize the NYCHRL’s “uniquely broad and remedial purposes,” the panel noted.
The state and federal counterparts—the NYSHRL and ADA—treat alcoholism as an impairment that can form the basis of a disability discrimination suit, and both statutes also prohibit discrimination on the basis of a perceived impairment.
“On the one hand, as the plaintiffs argue, 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 Second Circuit wrote. “On the other hand, we recognize 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.”
At a loss, the panel certified the question to the state’s highest court. No state court has addressed the issue, which presents important issues of New York law and policy, the court said.
“In the absence of authority from New York courts, we cannot predict with confidence how the New York Court of Appeals would reconcile the broad, remedial purpose of the NYCHRL with the specific language of section 8-102(16)(c),” the Second Circuit wrote. “Accordingly, we defer decision on this appeal and cross-appeal in order to certify the following question: ‘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?’”
To read the decision in Makinen v. City of New York, click here.