Second Circuit Addresses Alcoholism Perceived Disability Claims Under NYCHRL

Edgar M. Rivera, Esq.

On May 22, 2017, in Makinen v. City of New York, the Second Circuit certified the following question: does 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?  The question will be answered by the New York State Court of Appeals.

Plaintiffs Kathleen Makinen and Jamie Nardini served as New York Police Department (NYPD) officers for several years.  During their employment, each was referred to the NYPD’s Counseling Service Unit (CSU), which offers treatment and rehabilitation for officers struggling with substance abuse. Once an officer is referred to CSU with alleged alcohol-related problems, a trained counselor conducts an intake interview and contacts references to gather information regarding the officer’s reported alcohol use. If an officer is diagnosed with an alcohol use disorder, CSU staff develops a personal treatment plan, which may include educational videos, counseling, Alcoholics Anonymous meetings, outpatient treatment, or inpatient treatment. An officer who refuses treatment is referred to the NYPD’s Medical Division, which may order the officer to undergo treatment or face disciplinary action. The officer is entitled to challenge the disciplinary action in administrative proceedings by filing a grievance with the agency that oversees CSU or through an Article 78 proceeding. Otherwise, once an officer is diagnosed with an alcohol-related problem, receipt by CSU of subsequent evidence of alcohol consumption triggers a mandatory reassessment and, potentially, further treatment.

While in the midst of contentious custody proceedings, Makinen’s and Nardini’s respective children’s fathers—both of whom are also NYPD officers—separately reported to the NYPD that plaintiffs were alcoholics. In response to these accusations, plaintiffs advised the NYPD that they did not have a problem with alcohol, and that their children’s fathers’ allegations were merely attempts to gain leverage during these custody proceedings. The NYPD ignored both plaintiffs’ objections and the evidence that they submitted demonstrating that they were not alcoholics. Instead, the NYPD ordered that they attend inpatient and outpatient “treatment” under threat of suspension and termination. At no point did the NYPD give either plaintiff any diagnostic test to determine if they had an alcohol use disorder. Both plaintiffs incurred significant out-of-pocket expenses associated with the “treatment,” as well as emotional distress damages. The NYPD also disclosed to its employees that plaintiffs purportedly suffered from alcoholism, which caused plaintiffs to suffer further distress. For Makinen, the emotional distress was so severe that she was forced to retire from her employment with the NYPD.

Makinen and Nardini filed suit, bringing federal, state, and local claims, claiming that the NYPD mistakenly perceived that they were alcoholics and discriminated against them on the basis of that perceived disability. At trial, the jury rejected the state and federal claims, but rendered a verdict in favor of both Makinen and Nardini on their NYCHRL claim. The NYPD appealed.

Section 8-107(1)(a) of the NYCHRL prohibits employment discrimination based on an “actual or perceived […] disability.” The statute defines “disability” as “any physical, medical, mental or psychological impairment, or a history or record of such impairment.” In the case of alcoholism, however, the NYCHRL narrows the definition of “disability” so that it “shall only apply to a person who (1) is recovering or has recovered and (2) currently is free of such abuse.”

However, the language of the provision seemingly contradicts the City Council’s intention. The NYCHRL provides employees greater protections than do its state and federal counterparts. In 2005, and again in 2016, the City Council emphasized that the NYCHRL was intended to be more pro-plaintiff than Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Americans with Disabilities Act (ADA), and the New York State Human Rights Law (NYSHRL). Neither the ADA nor the NYSHRL contains such a limitation on alcohol-related medical conditions. Under this theory of statutory interpretation, the NYCHRL cannot provide alcoholics (or perceived alcoholics) fewer protections than the ADA and the NYSHRL.

Here, the court was tasked to consider whether a plaintiff may state a claim if she is perceived to be an untreated alcoholic. The NYPD argued that the plain text of the NYCHRL foreclosed such a claim, as the statute defines only recovered or recovering alcoholics as a having a disability. Makinen and Nardini argued that the limitation only applies when someone actually is an alcoholic, not where the employee is only mistakenly perceived to be an alcoholic, as that interpretation would run afoul of the City Council’s intent.

The Second Circuit decided to certify this case to the New York State Court of Appeals to determine the scope of the NYCHRL with respect to the protections afforded to alcoholics who are not in treatment. Certification allows the Second Circuit to give the New York State Court of Appeals the opportunity to determine questions of New York law for which no controlling precedent of the Court of Appeals exists. When deciding whether to certify a question, the Second Circuit considers the absence of authoritative state court interpretations of the law in question, the importance of the issue to the state, whether the question implicates issues of state public policy, and the capacity of certification to resolve the litigation. The Second Circuit found that the factors here favored certification.

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.