Disability Discrimination Claim Arising From Medical Marijuana User Status Sufficiently Alleged Under City, But Not State, Law

A recent decision, Brouillard v Sunrun, Inc., No. 518516-2019, 2020 WL 998990, 2020 N.Y. Slip Op. 30663(U) (N.Y. Sup Ct, Kings County Feb. 26, 2020), illustrates the difference between the New York State Human Rights Law and the comparatively broader New York City Human Rights Law – here, specifically, in the context of a claim of disability discrimination.

Plaintiff alleges, inter alia, that defendant offered him a job, and at the time of the job offer, he suffered from medical conditions, including bilateral dislocated patellas. He alleges that before he began working, defendant subjected him to a drug test, and that he was informed that he tested positive for marijuana. Plaintiff responded by stating that he had a prescription for medical marijuana due to chronic pain, and provided defendant with a medical Marijuana Program Registry Identification Card and associated documents proving that his marijuana use was legal. Nevertheless, defendant informed plaintiff that it was rescinding its job offer because he tested positive for marijuana.

Plaintiff sued, alleging disability discrimination under the New York State Human Rights Law and the New York City Human Rights Law; the gravamen of plaintiff’s complaint was that defendant rescinded the job offer because of his disabilities.

Initially, the court dismissed plaintiff’s discrimination claim under state law, since plaintiff did not allege that he could perform the “essential functions” of the job upon the provision of “reasonable accommodations”. The court explained:

A complaint states a prima facie case of disability discrimination under Executive Law § 296 if the individual suffers from a disability and the disability engendered the behavior for which he or she was discriminated against in the terms, conditions, or privileges of his or her employment (see Matter of McEniry v. Landi, 84 N.Y.2d 554, 558, 620 N.Y.S.2d 328, 644 N.E.2d 1019; McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d 676, 677, 829 N.Y.S.2d 129; Thide v. New York State Dept. of Transp., 27 A.D.3d 452, 453, 811 N.Y.S.2d 418). The term “disability”, however, is limited to disabilities **4 which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job held (see Executive Law § 292[21]; McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d at 677, 829 N.Y.S.2d 129; Umansky v. Masterpiece Intl., 276 A.D.2d 691, 692, 714 N.Y.S.2d 735). Here, the complaint does not set forth any factual allegations sufficient to show that, upon the provision of reasonable accommodations, the plaintiff could perform the essential functions of the job for which he was hired despite his disability (see Staskowski v. Nassau Cmty. Coll., 53 A.D.3d 611, 611, 862 N.Y.S.2d 544, 545-46; McKenzie v. Meridian Capital Group, LLC, 35 A.D.3d at 677, 829 N.Y.S.2d 129; Sotomayor v. Kaufman, Malchman, Kirby & Squire, 252 A.D.2d 554, 554, 675 N.Y.S.2d 894). Indeed, the complaint does not even state what his job would have entailed.

The court reached the opposite conclusion, however, as to plaintiff’s disability discrimination claim under the New York City Human Rights Law:

Unlike the definition of “disability” contained in Executive Law § 296, the definition of “disability” under the Administrative Code does not include “reasonable accommodation” and defines “disability” solely in terms of impairments” (Jacobsen v. New York City Health & Hosps. Corp., 22 N.Y.3d 824, 834-35, 11 N.E.3d 159, 167, citing Romanello, 22 N.Y.3d at 885, 976 N.Y.S.2d 426, 998 N.E.2d 1050; Administrative Code of City of N.Y. § 8-102[16]). The Administrative Code simply forbids employment discrimination against physically and mentally impaired individuals and allows employers to raise as an affirmative defense of the inability of a disabled employee to “with reasonable accommodation, satisfy the essential requisites of the[ir] job [s]” (id., Administrative Code of City of N.Y. **5 § 8-107[15][b]). Thus, unlike the Executive Law, the Administrative Code places the burden on the employer to show the unavailability of any safety and reasonable accommodation and to show that any proposed accommodation would place an undue hardship on its business (id., see also see Romanello, 22 N.Y.3d at 885, 976 N.Y.S.2d 426, 998 N.E.2d 1050; Phillips, 66 A.D.3d at 183, 884 N.Y.S.2d 369).

Applying these principles, the complaint sufficiently states a cause of action for disability discrimination under the Administrative Code. To state a cause of action of employment discrimination due to a disability under the New York City Administrative Code § 8-107, a plaintiff must simply allege that he or she suffers from a disability and that the disability engendered the behavior for which he was discriminated against in the terms, conditions, or privileges of his or her employment (Ruane-Wilkens v. Board of Educ. of City of NY, 56 A.D.3d 648, 649, 868 N.Y.S.2d 112; Staskowski v. Nassau Community Coll, 53 A.D.3d 611, 862 N.Y.S.2d 544). The complaint clearly makes out a claim for disability discrimination under the Administrative Code § 8-107.

While the City of New York may not recognize the possession of a medical marijuana card as a disability, the complaint does not simply allege that plaintiff’s disability arose from his possession of a medical marijuana card. Plaintiff alleged in his complaint that he was discriminated against because of his disability which he described as “chronic pain and chronic knee pain and possession of a Medical Marijuana Program Registry Identification Card (¶ 1). In ¶¶ 8-10, he alleged that the conditions which cause his pain are “congenial bilateral dislocated patellas, patella alta, hypoplastic patella and a destro convex scliotic curvature.”

Based on this, the court found it unnecessary to reach the issue of whether plaintiff’s possession of a medical marijuana card, by itself, is a “disability” under the New York City Human Rights Law.

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