Second Circuit certifies New York City Human Rights Law issue to State Court of Appeals

The New York City Human Rights law is a self-contained statute that provides employees greater protections that its state and federal counterparts. In 2005 and again in 2016, the City Council emphasized that the City law was intended to be more pro-plaintiff than Title VII, the ADEA, the Americans with Disabilities Act and the State Human Rights Law. This means the courts are still working through the City law to determine what it means.

The case is Makinen v. City of New York, decided on May 22. The issue here is whether the City law's disability discrimination provision makes it illegal to discriminate against untreated alcoholics, that is, people who are not in recovery. This case went to trial, and both plaintiffs prevailed. The jury awarded Makinen $16,100 in compensatory damages and $30,000 in punitives. The second plaintiff won $75,000 in compensatory damages and $30,000 in punitives.

This appeal concerns the proper interpretation of the City law. If the courts accept the City's narrow interpretation, the plaintiff may end up losing the case. Under the plain language of the City law, alcoholics who are not in recovery are not protected from discrimination. The statute says that "In the case of alcoholism," the definition of "disability" only applies "to a person who (1) is recovering or has recovered and (2) currently is free of such abuse." But under federal and state law, alcoholics are protected from discrimination even if they are not in recovery. The Court of Appeals says that "[n]either statute is limited to recovering or recovered alcoholics."

We interpret statutes by examining their plain language and their context. The City of New York argues that plaintiffs cannot win their case because they were perceived as alcoholics (they were not actually alcoholics) and were therefore not in recovery. In response, plaintiffs note that the City Council has emphasized that the City law provides broader protections than its state and federal counterparts in every way. Under this theory of statutory interpretation, the City law cannot provide alcoholics (or perceived alcoholics) fewer protections than the Americans with Disabilities Act and the New York Human Rights Law.

The Second Circuit (Lohier, Sack and Livingston) decide to certify this case to the New York Court of Appeals to determine to scope of the City law with respect to protections afforded to alcoholics who are not in treatment. Certification is a way to ensure that the state courts have the first opportunity to definitively interpret state and local laws before the federal court of appeals weighs in on the issue. This is the second time in a year that the Second Circuit has certified a City law issue to the State Court of Appeals. Last September, the Circuit sent Chauca v. Abraham, 841 F.3d 86 (2d Cir. 2016) (a case I am handling), to the State Court of Appeals to determine when plaintiffs in employment discrimination cases may recover punitive damages.