The New York Court of Appeals ruled that the New York City Human Rights Law (“NYCHRL”) does not permit a claim of disability discrimination based solely on a perception of untreated alcoholism. To sustain a claim, an individual must actually be a recovered (or recovering) alcoholic and no longer abusing alcohol. Makinen v. City of New York, 2017 NY Slip Op. 07208 (N.Y. October 17, 2017).

As we discussed in a previous blog post, two former New York City police officers were not alcoholics, but were falsely accused of abusing alcohol in the context of their respective child custody disputes. Those allegations were reported to the New York City Police Department. The NYPD gave the police officers mandatory referrals to the Department’s Counseling Services Unit where they were diagnosed with alcohol abuse and alcohol dependence. The officers accepted alcohol treatment in order to avoid disciplinary action, but maintained that they were not, in fact, alcoholics. In the subsequent litigation, all parties agreed that the officers “were not actually alcoholics.”

The police officers sued the City of New York and others for disability discrimination under the NYCHRL, arguing that the New York City Police Department regarded them as alcoholics, although they were not. The trial court allowed the officers to proceed with their claims, but on appeal, the Second Circuit Court of Appeals asked the New York Court of Appeals (New York State’s highest court) to certify the question as to whether the NYCHRL precludes a plaintiff from asserting a disability discrimination claim based solely on a perception of untreated alcoholism.

The New York Court of Appeals answered the question in the negative, holding that the “plain language” of the law limits protections only to those employees who (1) are recovering or have recovered from alcoholism, and, (2) are “currently free of such abuse.” The meaning of this plain language is that the NYCHRL “does not regulate employer actions motivated by concern with respect to the abuse of alcohol.”

In its decision, the Court recognized that this holding and the statutory language of the NYCHRL vary significantly from both state and federal law. Indeed, both the New York State Human Rights Law and the Americans with Disabilities Act afford protections to alcoholics even if still abusing alcohol – a fact all parties conceded. But the Court stated that it could not rewrite the statute, and that the City Council could amend the language of the law.

While this decision is a “win” for New York City employers, we can expect to see a legislative response amending this statutory language of the NYCHRL as a result of this decision. Additionally, employers in New York and elsewhere remain obligated under state and federal disability laws to treat employees struggling with alcohol or drug addiction like other disabled employees, regardless of whether the employee is in treatment or not, or whether the addiction is real or perceived.

Employers should review policies and practices keeping in mind that alcohol and substance abuse issues may be potential disabilities. Consider training managers on how to effectively communicate with employees facing alcohol or substance abuse issues. Such issues often arise post-accident or during performance and attendance discussions. If not properly trained to identify and address the potential disability issues, managers may inadvertently run afoul of protections for such employees.