2nd Circuit Certifies Question to New York Court of Appeals Regarding Disability Discrimination Claims of “Perceived Alcoholism”

In Makinen v. City of New York (2d Cir. 16-973 May 22, 2017), the court certified the following question to the New York Court of Appeals:

Do sections 8‐102(16)(c) 7 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?

This case arises from plaintiffs’ (both NYPD officers) claims of disability discrimination under the NYC Human Rights Law based on a mistaken perception that they were alcoholics.

N.Y.C. Admin. Code § 8-107(1)(a) prohibits employment discrimination based on an “actual or perceived … disability”. Code § 8‐102(16) defines the term “disability”, and specifically provides, in subsection 8-102(16)(c):

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 determined that certification was proper because it could not “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).”

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