In Makinen v City of New York, two New York City police officers sued the City and the Police Commissioner alleging that they were discriminated against because they were perceived to be untreated alcoholics, a form of disability discrimination. The problem is, they weren’t alcoholics at all, and the express terms of the New York City Human Rights Law only considers recovered or recovering alcoholics to be disabled. This is significantly different than the protections of the New York State Human Rights Law and the Americans with Disabilities Act, which do not require an alcoholic to be recovered or recovering to be protected.
That’s the tension that the Second Circuit saw. When the NYCHRL was adopted, it was intended to be a civil rights floor higher than the protections offered by state or federal law. But in this case, the NYCHRL contains an express limitation on disability for alcoholics not found in state or federal law. If the Second Circuit followed the express language of the NYCHRL, and held that the plaintiffs were not considered disabled because they were perceived as untreated alcoholics, even though they weren’t, it would offer less protection than the purpose of the statute intended. Following the purpose of the NYCHRL to find the plaintiffs protected, on the other hand, would ignore the statute’s express limitation that only recovered or recovering alcoholics, or those perceived to be so, are protected.
Because no New York Court has addressed this question, the Second Circuit decided not to decide. Instead, it certified the following question to the Court of Appeals: “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 Court of Appeals will now take up the question. Can the remedial purpose of a discrimination statute trump its express language where the purpose offers more protection than does the text? I think the Court would be hard pressed to overlook the express limitation that was chosen, offering protection only to recovered or recovering alcoholics. If that limitation is out of line with the protections intended, that is a question for the Legislature to resolve, not the courts.
The Second Circuit’s opinion can be found here.