Is Perceived Alcoholism a Disability?

Can an employer fire an employee if it believes the employee has bloodshot eyes and believes it is because the employee is abusing drugs when, in fact, the employee is suffering from allergies? The highest state court in New York recently said “YES!”

On October 17, 2017, in Makinen v. City of New York, the New York Court of Appeals decided that employees in New York City, could not sue an employer for disability discrimination when the employer mistakenly perceives the employee to be an alcoholic.

New York Disability Discrimination Laws

Disability discrimination occurs when an employer covered under the law, treats an employee unfavorably because the employee has a disability. For example, an employer who is covered under the disability discrimination laws, cannot fire, refuse to promote, or deny benefits to an employee who has a disability.

Although there are three laws in New York available to protect employees from disability discrimination in the workplace, each law has different requirements. The Americans with Disabilities Act (ADA), being a federal law, has more stringent requirements than its state and local counterpart, the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL). The NYCHRL, available for workers employed in New York City, offers the broadest protection.

Sometimes, however, such as in the Makinen case, New York City employees are not so lucky. So, why would the court in this case decide that it is permissible to lawfully punish an employee based solely on the employer’s mistaken belief that the employer is an alcoholic?

In the Makinen case, two New York Police Department (NYPD) police officers were referred to the NYPD’s internal Counseling Services Unit (CSU), because they were perceived as alcoholics. The CSU is an outpatient treatment center that focuses on helping police officers who are struggling with substance abuse. As it turned out, however, the parties now agree that the two police officers were actually not alcoholics. Yet, they were required to receive an alcohol-related diagnosis and undergo treatment.

On appeal, the issue was that the court could not reconcile between the unambiguous language in two sections of the New York City Administrative Code, which did not consider a mistaken perception of alcoholism to be a “disability” under the NYCHRL, with the legislative intent behind the NYCHRL which was to provide broad protection to discrimination victims.

After interpreting the two codes at issue, the court ultimately decided that a mistaken perception of alcoholism is not considered a “disability” under New York City law. The court held that although the NYCHRL is supposed to provide broader coverage than the NYSHRL or the ADA, it could not be construed more broadly because of the clear language stated in the NYCHRL which requires otherwise. Therefore, although the court thought that the NYCHRL should have protected the police officers in this case, the court could not rule in their favor or else they “would be rewriting the NYCHRL, not merely giving it a broad reading to effectuate its remedial anti-discrimination purpose.”

Disability Discrimination in the Workplace

In sum, it is important to know that just because an employee who works in New York cannot sue an employer for disability discrimination under New York City law after being treated less favorably based on a mistaken perception of alcoholism, it does not mean that the employee cannot sue at all. There are other laws available under which an employee can sue. After all, the purpose of these anti-discrimination laws is to protect those who are victims of discrimination in the workplace.

If you have questions about disability discrimination or any other type of employment discrimination or retaliation, contact the Long Island employment lawyers at Famighetti & Weinick, PLLC. Our phone number is 631-352-0050 and our website is

Today’s Long Island employment law blog was written by Hofstra Law School intern Thalia Olaya.

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