Maybe.  In Makinen v. City of New York, 857 F.3d 491 (2d Cir. May 22, 2017), the U.S. Court of Appeals for the Second Circuit recently certified, to the New York Court of Appeals, this very question – whether a plaintiff may state a claim for disability discrimination under the New York City Human Rights Law (“NYCHRL”) if she is perceived to be an untreated alcoholic.

By way of background, although the NYPD’s Counseling Services Unit forced two police officers to undergo alcoholism treatment, all the parties ultimately agreed that neither officer was actually suffering from alcoholism.  As a result, both officers brought claims for disability discrimination under the NYCHRL, the NYS Human Rights Law (“NYSHRL”), and the Americans with Disabilities Act (“ADA”), alleging discrimination based on the mistaken perception that they were untreated alcoholics.

Defendants argued that Plaintiffs’ NYCHRL claims were barred by the plain text of the statute because, pursuant to Section 8-102(16)(a), only “recovered or recovering alcoholics” are defined as having a disability, and Plaintiffs were not “recovered or recovering alcoholics.”  Plaintiffs argued that this limitation only applies when an employee actually suffers from alcoholism, not when she is mistakenly perceived to suffer from alcoholism.

The district court ultimately held that individuals regarded as untreated alcoholics may state a claim under the NYCHRL because analogous claims were available under both the NYSHRL and ADA.  Defendants then appealed to the U.S. Court of Appeals for the Second Circuit.

The Second Circuit found that the language of the NYCHRL “seems in tension with the New York City Council’s stated intention of affording plaintiffs who sue under the NYCHRL all of the protection guaranteed by comparable provisions of State and federal law.  The City Council passed the Local Civil Rights Restoration Act of 2005 out of a concern that the NYCHRL had been ‘construed too narrowly to ensure protection of the civil rights of all persons covered by the law.’”  The court explained that it understood the Restoration Act to create a “one-way ratchet” that requires it to construe the NYCHRL “more liberally” than the NYSHRL and the ADA, which both “treat alcoholism as an impairment that can form the basis of a disability discrimination suit.  Both statutes also prohibit discrimination on the basis of a perceived impairment.  But neither statute is limited to recovering or recovered alcoholics.”

The court expounded that “[o]n the one hand, as the plaintiffs argue, because the NYSHRL and ADA prescribe a floor below which employee protections may not fall, the NYCHRL should not be interpreted to exclude untreated alcoholics.  On the other hand, we recognize that neither the NYSHRL nor the ADA contains a ‘similarly worded provision’ comparable to the NYCHRL’s limitation on the definition of disability in the form of alcoholism.”

Thus, as the court stated, due to the “absence of authority from New York courts, we cannot predict with confidence how the New York Court of Appeals would reconcile the broad, remedial purpose of the NYCHRL with the specific language of section 8-102(16)(c).”  Accordingly, the Second Circuit certified the following question to the New York Court of Appeals: “Do sections 8-102(16)(c) and 8-107(1)(a) of the [NYCHRL] preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?”

If you were discriminated against by your employer because of your actual or perceived alcoholism, don’t sit around and wait for the Second Circuit’s decision before taking action.  It’s always smart to consult with a New York City employment discrimination attorney as soon as possible to learn about, and preserve, all your rights under the law.

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