NY Highest Court: Discrimination Based on Perception of Untreated Alcoholism Not Actionable Under the NYC Human Rights Law

In Makinen v. City of New York, 2017 NY Slip Op 07208, 2017 WL 4621717 (N.Y. Ct. App. Oct. 17, 2017) (J. Fahey), the Court of Appeals of New York – the state’s highest court – addressed the following certified 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?

The answer to this question, held the court, is “yes”. The court reached this conclusion, notwithstanding the fact that the New York City Human Rights Law is ordinarily required to be given a broader construction than its federal and state counterparts (i.e., the Americans with Disabilities Act and the New York State Human Rights Law).

This case arises from referrals of plaintiffs, each a NYPD officer, to the NYPD’s internal Counseling Services Unit (CSU).[1]For more background, see prior decisions in the case at 53 F Supp 3d 676 [SDNY 2014]; 167 F Supp 3d 472 [SDNY 2016]; 857 F3d 491 [2d Cir 2017].

NYC Admin. Code Administrative Code § 8-102(16)(a) provides that “[t]he term ‘disability’ means any physical, medical, mental or psychological impairment, or a history or record of such impairment”, another subdivision, § 8-102(16)(c), provides:

[i]n 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[.]

Here, the result was driven by the NYCHRL’s plain meaning. From the decision:

It is clear that the NYCHRL only treats recovering or recovered alcoholics as having a disability under the statute, while the NYSHLR and the ADA cover alcoholics presently abusing alcohol, as well as recovering and recovered alcoholics. While the plain mandate of the Restoration Act is for it to be read broadly, and it does refer to the State and federal human rights law as floors below which the NYCHRL should not fall, this is a rare case where through its express language, the City Council has mandated narrower coverage than the NYSHRL or the ADA. The Restoration Act’s requirement that the statute be construed broadly cannot apply when the NYCHRL expressly requires otherwise — we would be rewriting the NYCHRL, not merely giving it a broad reading to effectuate its remedial anti-discrimination purpose (see Bello v Roswell Park Cancer Inst., 5 NY3d 170, 173 [2005] [“(W)e may not rewrite the statute to achieve more ‘fairness’ than the Legislature chose to enact”]). The City Council may always amend the language of these provisions, but until it does we are bound by its express terms. []

In sum, we conclude that the Administrative Code does not consider a mistaken perception of alcoholism to be a disability covered by the NYCHRL. The only reasonable [*4]construction of the subject NYCHRL provisions makes it unlawful for an employer to discriminate against an individual based on the individual’s status, whether actual or perceived, as one recovering or recovered from alcoholism and currently free from alcohol abuse. Given this express choice by the City Council to extend the protections of the NYCHRL only to recovered or recovering alcoholics, there is no basis for us to use Administrative Code § 8-130 in search of a different reading of the NYCHRL’s plain text.

It concluded that “the Administrative Code does not consider a mistaken perception of alcoholism to be a disability covered by the NYCHRL”.

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1. For more background, see prior decisions in the case at 53 F Supp 3d 676 [SDNY 2014]; 167 F Supp 3d 472 [SDNY 2016]; 857 F3d 491 [2d Cir 2017].
(212) 227-2100