For those who follow The Harman Firm Blog, you may recall our article “Second Circuit Addresses Alcoholism Perceived Disability Claims Under NYCHRL,” in which we reported that the Second Circuit in Makinen v. City of New York certified the question of whether §§ 8-102(16)(c) and 8-107(1)(a) of the New York City Human Rights Law (NYCHRL) preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism. Section 8-107(1)(a) prohibits discrimination based an actual or perceived disability. But in the case of alcoholism, § 8-102(16)(c) limits the applicability of the term “disability” to cover only employees who are recovering or have recovered from alcohol use disorder and are currently free from abuse. On October 17, 2017, the Court of Appeals of New York answered the certified question in the affirmative.
Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years and, during that time, were falsely accused of abusing alcohol by their respective former partners. Ms. Nardini’s former partner—also the father of her daughter—accused Ms. Nardini of abusing alcohol in the midst of a tumultuous breakup and ongoing custody battle, which led the NYPD to refer Ms. Nardini to its Counseling Services Unit, where she was diagnosed as suffering from alcohol abuse. She accepted treatment only under threat of suspension. Ms. Makinen was similarly referred to the NYPD’s Counseling Services Unit while embroiled in a custody dispute with her former husband. On multiple occasions, Ms. Makinen’s former husband and his family members alleged that Ms. Makinen drank excessively, drove while drunk, and abused her children. The Counseling Services Unit diagnosed Ms. Makinen—like Ms. Nardini—with alcohol dependence, and Ms. Makinen reluctantly agreed to attend a four-week inpatient rehabilitative treatment program to avoid disciplinary actions. It is undisputed, however, that neither plaintiff was actually an alcoholic.
According to the New York City Council, the provisions of the NYCHRL are subject to two rules of interpretation: (1) the NYCHRL “shall be construed liberally for the accomplishment of [the law’s] uniquely broad and remedial purposes, regardless of whether federal or New York State civil and human rights laws […] have been so construed”; and (2) “interpretations of New York state or federal statutes with similar wording may be used to aid interpretation for the NYCHRL, viewing similarly worded provisions of federal and state civil rights laws as a floor below which the NYCHRL cannot fall, rather than a ceiling above which the local law cannot rise.” Notably, neither the Americans with Disabilities Act (ADA) nor the New York State Human Rights Law (NYSHRL) requires an alcoholic to be recovering, recovered, or free from abuse. Rather, all alcoholics are protected under the ADA and NYSHRL, so long as their work performance meets the same standards as the employer’s other, non-alcoholic employees.
Makinen turns on the issue whether the NYPD violated § 8-107(1)(a) of the NYCHRL, which makes it unlawful to discriminate against a person because of the actual or perceived disability, in light of §§ 8-102(16)(a), which defines disability broadly, and 8-102(16)(c), which limits the definition of “disability” in the case of alcoholism to a person who is recovering or has recovered from an alcohol use disorder and currently is free of alcohol abuse. Defendants argued that Plaintiffs were not covered under § 8-107 because Defendants did not perceive them to be recovering or recovered and currently free from alcohol abuse; therefore, Plaintiffs did not fall under § 8-102(16)(c)’s heightened requirements for an alcoholic to be considered disabled.
Plaintiffs argued that—in light of the NYCHRL’s liberal construction to accomplish its uniquely broad and remedial purpose and setting the ADA and NYSHRL as a floor below which the NYCHRL cannot fall—these sections should be interpreted not to modify the definition of “disability,” but rather operate to exempt in narrow, specified circumstances the application of the broad statutory protections afforded in the case of alcoholism. In other words, § 8-102(16)(a) broadly includes all alcoholics, whether actual or perceived, and § 8-102(16)(c) serves only to claw back a narrow portion of that protection in the case of actual alcoholism. As Plaintiffs did not actually suffer from alcoholism, they could not be expected to show that they were recovering, had recovered, and were currently free from such abuse under § 8-102(16)(a). This reading would advance the NYCHRL’s protective and remedial goals and give effect to the stated intention of the City Council.
The Court of Appeals, however, disagreed with Plaintiffs. The Court and the parties agreed that the question was one of statutory interpretation. As a matter of statutory interpretation, where the disputed language is unambiguous, courts are bound to give effect to its plain meaning. The Court of Appeals found that—despite that the NYCHRL specifically requiring that it should be interpreted broadly and provide greater relief than the ADA or NYSHRL—there was no ambiguity about the plain language of the NYCHRL: The statute does not protect non-alcoholics who are perceived to be untreated alcoholics. In other words, the NYCHRL’s plain text only prohibits an employer from unfairly typecasting an alcoholic employee who has sought treatment and who is not presently abusing alcohol, not an employee whom an employer mistakenly thinks has a problem with alcohol.
At The Harman Firm, LLP, we believe that all people living with disabilities should be free from discrimination. If your employer has discriminated against you based on your disability or perceived disability, contact The Harman Firm, LLP, for a free assessment of your claims.