Last month, New York’s highest court took the unprecedented step of construing the New York City Human Rights Law (“NYCHRL”) more narrowly than its state and federal counterparts to bar plaintiffs’ city law disability discrimination claims. Answering a certified question from the United States Court of Appeals for the Second Circuit, the New York Court of Appeals in Makinen v. City of New York, Nos. 16-973-cv(L), 16-1080-cv(XAP), 2017 WL 4621717 (N.Y. Oct. 17, 2017) held that two former New York City Police Department (“NYPD”) officers could not sustain disability discrimination claims on the basis of “perceived untreated alcoholism,” even though such claims would be recognized under the New York State Human Rights Law (“NYSHRL”) and the Americans with Disabilities Act (“ADA”).
Background
In 2005, the New York City Council enacted the Local Civil Rights Restoration Act which, among other things, instructed courts to construe the NYCHRL “liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws . . . have been so construed.” State and federal anti-discrimination laws have both been described by the New York City Council as “a floor below which [the NYCHRL] cannot fall, rather than a ceiling above which the local law cannot rise.” Since that amendment, the New York Court of Appeals had never held that the NYCHRL provides less protection than its state or federal counterparts.
The plaintiffs in Makinen were two female NYPD officers who filed suit against the NYPD, alleging that it had discriminated against them based on the NYPD’s perception that they were alcoholics. The matter proceeded to trial, and the jury found in plaintiffs’ favor. The NYPD appealed, and the Second Circuit certified the following question to the New York Court of Appeals for decision before hearing the case: “Do[es] [the NYCHRL] preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”
New York Court of Appeals Analysis
The New York Court of Appeals answered affirmatively, holding that plaintiffs cannot bring disability discrimination claims based on a perception of untreated alcoholism under the NYCHRL. The NYCHRL defines alcoholism as a “disability” only in certain circumstances, prohibiting discrimination against “a person who (1) is recovering or has recovered and (2) currently is free of such abuse.” The NYSHRL and ADA, by contrast, provide more expansive protection for “alcoholics abusing alcohol, as well as recovering and recovered alcoholics.” While the Court acknowledged the City Council’s instructions to broadly construe the NYCHRL, it held that the plain and clear text of the statute governed its conclusion:
[T]his is a rare case where through its express language, the City Council has mandated narrower coverage than the NYSHRL or the ADA. [The] requirement that the statute be construed broadly cannot apply when the NYCHRL expressly requires otherwise – we would be rewriting the NYCHRL, not merely giving it a broad reading to effectuate its remedial anti-discrimination purpose.
Considerations for Employers
Although employees may not now assert disability discrimination claims under the NYCHRL based on perceived alcoholism as a result of this decision, New York employers should remember that such alleged discrimination is already prohibited by the NYSHRL and ADA. Moreover, it is likely that the City Council will amend the NYCHRL to include this category of discrimination. Consequently, employers should review their policies and practices to ensure compliance with all applicable laws prior to taking any actions with respect to employees who may have suspected substance abuse or alcohol addiction.