Court of Appeals September Session: Arguments of Interest for September 5, 2017

Welcome back to the first day of argument for the Court of Appeals’ 2017-18 term. The Court is back for the first full argument term after its summer break, the first with new Judge Paul Feinman sitting. With lots of exciting cases for New York law on the docket this term (though probably not as exciting as the Supreme Court’s OT17), the first day of argument has begins with four cases on the docket (the Court’s argument summaries can be found here) involving the following issues: (1) whether a police scanner needs to be attached to or designed for use in a vehicle to violate the Vehicle and Traffic Law; (2) whether commencement of a rescission action before the time for performance has occurred constitutes an anticipatory breach of a contract; (3) whether 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; and (4) whether the State Education Department can withhold documents concerning preschool special education audit procedures under the Freedom of Information Law exemption for documents compiled for law enforcement purposes.

No. 104 Makinen v City of New York

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?”

On appeal, the City argues that the NYCHRL “does not allow discrimination claims based on a mistaken perception of active alcoholism” because only those who are actually alcoholics, recovering or recovered alcoholics are classified as disabled. The plaintiffs counter that the section’s narrowed definition of disability applies only to people who actually suffer from alcoholism, not to those who are mistakenly perceived to be alcoholics. Now, the Court of Appeals will decide whether the plaintiffs may prevail on their disability discrimination theory.

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