Those of us who represent employers in New York are quite familiar with the incredible breadth of the New York City Human Rights Law (CHRL), which was amended in 2005 with the legislative intent that it serve “uniquely broad and remedial purposes” and be “construed liberally.” Yet in a surprising move, on October 17, 2017, the New York State Court of Appeals, the highest court in the state, ruled that the CHRL is narrower in scope and protection than either its federal or state counterparts in one specific area: it does not allow a plaintiff to sue for disability discrimination based solely on mistaken perception that s/he had untreated alcoholism.
In Makinen v. City of New York, 2017 NY Slip Op 07208, the two plaintiffs were both police officers with the New York City Police Department (NYPD). In connection with ongoing custody battles, they were both accused (falsely) of abusing alcohol. As a result of the accusations, NYPD referred the plaintiffs to its internal counseling unit, which is an outpatient treatment center with the stated objective of assisting police officers experiencing difficulty with substance abuse to rehabilitate and return to service. Both the plaintiffs denied suffering from alcoholism, but both accepted the referred treatment by the counseling unit to avoid being suspended.
The plaintiffs thereafter brought suit in federal court. During the lawsuit, both sides agreed that neither of the plaintiffs were alcoholics. After a jury verdict in the plaintiffs’ favor under the CHRL, defendant appealed, arguing, among other things, that the CHRL does not protect an employee who is perceived to be an untreated alcoholic, based on specific statutory language. Because this issue had never been addressed by a state court, the U.S. Court of Appeals for the Second Circuit certified the disposition of this question to the Court of Appeals for review.
On review, the Court held that it was bound by the specific language in the CHRL as it relates to the definition of disability. Section 8-102[c] of the Administrative Code contains a very specific definition of disability as it applies to substance abuse:
In the case of alcoholism, drug addiction or other substance abuse, the term “disability” shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse, and shall not include an individual who is currently engaging in the illegal use of drugs, when the covered entity acts on the basis of such use.
The Court found this language to be unambiguous – the CHRL does not consider a mistaken perception of alcoholism to be a disability, because in such circumstances a person does not meet the first prong of the definition, i.e., “is recovering or has recovered.” Indeed, the Court explained that, by this definition, the CHRL is not seeking to “regulate employer actions motivated by concern with respect to the abuse of alcohol.” Rather, its goal is to prevent employers from “unfairly typecast[ing]” alcoholics who have sought treatment and are not currently abusing alcohol. This language is markedly different than the definition of disability under either the New York State Human Rights Law (SHRL) or the federal Americans with Disabilities Act (ADA), which do not differentiate between recovering/recovered alcoholics and those currently abusing alcohol and thus allow a claim like the one asserted by the plaintiffs.
The Court acknowledged that this decision could seem at odds with the legislative intent of the CHRL to be extremely broad. The Court cited from the legislative history of the CHRL the sentiment that other statutes should be viewed “as a floor below which the [CHRL] cannot fall, rather than a ceiling above which [it] cannot rise.” The Court nevertheless found that this legislative history could not override the clear and unambiguous statutory language. As a preliminary matter, the quoted sentiment about floor versus ceiling is missing a few words – it applies to “viewing similarly worded provisions of federal and state civil rights laws” (emphasis added). The language at issue here is clearly not similar to that in the SHRL or the ADA. But even without that distinction, the Court explained that the primary rule of statutory interpretation is that it must rely on the plain meaning of the language, where no ambiguity exists. Otherwise, the Court would not merely be broadly reading the statute, but would instead be “rewriting” it. Here, the language of the CHRL when it comes to defining disability for substance abuse purposes could not be clearer. Accordingly, as the Court explained, “this is a rare case where through its express language, the City Council has mandated narrower coverage than the [SHRL] or the ADA.”
While this decision is clearly a victory for employers, who have chafed under the yoke of the CHRL for years, it is highly likely that the City Council will address legislatively what the Court has stated it could not do judicially. In other words, employers should expect that the City Council will seek to amend the CHRL to allow disability discrimination claims by employees erroneously treated as having a current substance abuse problem. We will be on the lookout for any such attempts and update you as/if the situation develops.
To read the opinion, please click here.