Court of Appeals Holds Plaintiffs Can’t Base Discrimination Claim Under the NYC Human Rights Law on Untreated Alcoholism

Under Title VII and the New York State Human Rights Law, individuals are protected from discrimination on the basis of a perceived disability, even if they don’t have one. The New York City Human Rights Law is generally interpreted to be even more protective than Title VII and the State Human Rights Law. In fact, the New York City Council specifically wrote interpretation guidelines into the City Human Rights Law to make sure that the protections offered under the local code don’t fall below those offered under State and federal law.

Not so for untreated alcoholism, however, the Court of Appeals held in Makinen v City of New York (No. 104). In Makinen, which I previewed here, 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 City Human Rights Law only considers recovered or recovering alcoholics to be disabled. Particularly, the City Human Rights Law provides:

Construing the plain language of the statute, the Court held that those words were unmistakable:

there is no ambiguity about the plain language of the NYCHRL, which is only open to one reasonable interpretation: the disability of alcoholism “shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse” (Makinen, 857 F3d at 496). Indeed, by its plain language, the NYCHRL does not regulate employer actions motivated by concern with respect to the abuse of alcohol. Rather, the NYCHRL covers circumstances in which employers unfairly typecast alcoholics who have sought treatment and who are not presently abusing alcohol, so as to ensure that such persons are afforded a fair opportunity at recovery. Said differently, the NYCHRL provides that, with respect to alcoholism, a person is considered to be disabled (so as to trigger the protections of that law) only when he or she “is recovering or has recovered” and “currently is free of such abuse”

So, those perceived as alcoholics even though they aren’t are out of luck under the City Human Rights Law, the Court held. That conclusion holds regardless of the City Council’s interpretation guidelines. The Court reasoned that the statute’s language is so clear that it doesn’t require construction. Applying the City’s interpretation devices to change the plain meaning of the statute is rewriting it, not interpreting it, and the Court declined to do so.

Instead, the City Council is free to amend the statute if it disagrees, the Court held.

Judge Garcia, joined by Judge Stein, dissented, arguing that the majority ignored the City Council’s clear intention to provide more protection under the City Human Rights Law and interpreted the statute for the first time as providing less protection than Title VII and the State Human Rights Law. The majority’s “narrow” reading not only ignores legislative intent, it will lead to unintended results.

the majority’s interpretation of the Human Rights Law is not limited to those sympathetic cases in which an employer seeks to explore a suspected case of alcoholism for safety or treatment purposes. Rather, under the majority’s reading, an employer may lawfully punish an employee — by denying benefits, refusing a promotion, or terminating them — based solely on a misguided assumption about that employee’s conduct. An employer could, for instance, fire an employee with bloodshot eyes based on an incorrect assumption that the employee was abusing drugs when, in fact, the employee suffered from allergies. Such a construction is inconsistent with the purpose of the Human Rights Law and the City Council’s stated goal of provided maximum protection for all civil rights plaintiffs.

. . .

To be sure, an employer seeking to address a case of perceived untreated alcoholism may be motivated by good-faith concerns regarding the employee’s health and safety. But the majority’s reading of the statute permits both well- and ill-intentioned behavior, and does little to encourage accuracy in these crucial determinations. Nor does it ensure that “alcoholics who have sought treatment . . . are afforded a fair opportunity at recovery” (majority op at 7). Instead, the majority’s decision shields an employer who inaccurately diagnoses a case of alcoholism, and then discriminates against an employee on the basis of that misdiagnosis. Such an interpretation distorts the provision’s clear purpose and undermine’s the City Council’s stated goals.

The Court of Appeals’ opinion can be found here.

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