DISCRIMINATION FOR "PERCEIVED ALCOHOLISM"

The New York City Human Rights Law (NYCHRL) is a civil rights law that is embodied in Title 8 of the Administrative Code of the City of New York. It prohibits discrimination in employment, housing, and public accommodations based on race, color, creed, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, marital status, and partnership status.

Recently in No. 104, Kathleen Makinen et al., Respondents, v. City of New York, et al., Appellants, October 17, 2017, New York Court of Appeals:

"The United States Court of Appeals for the Second Circuit has certified and we have accepted for review (29 NY3d 1019 [2017]) the question whether "sections 8 102 (16) (c) and 8 107 (1) (a) of the New York City Administrative Code preclude a plaintiff from bringing a disability discrimination claim based solely on a perception of untreated alcoholism?" (Makinen v City of New York, 857 F3d 491, 493 [2d Cir 2017]). We conclude that those sections of the Administrative Code plainly preclude a disability discrimination claim based solely on a perception of untreated alcoholism, and we therefore answer the certified question in the affirmative."

According to the dissent (J. Garcia):

Plaintiffs, two female police officers, were wrongfully diagnosed as alcoholics based on allegations made by their respective former partners from past relationships. As a result, plaintiffs' employer -- the New York City Police Department (NYPD) -- compelled them to undergo unwarranted treatment. Plaintiffs brought suit, contending, among other things, that defendants' discriminatory conduct violated City, State, and federal civil rights laws. The jury entered verdicts in favor of plaintiffs under the New York City Human Rights Law (the Human Rights Law).

Defendants appealed, contending that the relevant provisions of the Human Rights Law "preclude a plaintiff from bringing a discrimination claim based solely on a perception of untreated alcoholism" (Makinen v City of New York, 857 F3d 491, 497 [2d Cir 2017]). The Second Circuit determined that certification on this issue was warranted, and we accepted the certified question. Defendants advance a plausible reading of the Human Rights Law that would prohibit plaintiffs from recovering. Specifically, defendants contend that, according to the clear statutory language, the Human Rights Law applies only to "recovering" or "recovered" alcoholics, and therefore does not extend protection to an employee who is -- or, like plaintiffs, is perceived to be -- an untreated alcoholic, even if that employee is not, in fact, an alcoholic at all. The majority adopts this admittedly "narrow[]" reading of the Human Rights Law, concluding that the plain text of the statute "does not consider a mistaken perception of alcoholism to be a disability" (majority op at 6, 11).

But we are required to construe the Human Rights Law "broadly in favor of discrimination plaintiffs" wherever such a construction is "reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478 [2011]). Here, plaintiffs have advanced a logical interpretation of the statute that aligns with its text, that better serves its express remedial purpose, and that is consistent with its legislative history. Accordingly, I believe plaintiffs have asserted a valid discrimination claim under the Human Rights Law, and I dissent."

NEW ATTORNEY DISCIPLINE RULES TAKE EFFECT TOMORROW

The new rules are listed here (http://www.courts.state.ny.us/ad3/COPS/22_NYCRR_Part_1240.pdf) and I just note the following which recognizes the role of alcohol and substance abuse:

"§ 1240.11 Diversion to a Monitoring Program

(a) When in defense or as a mitigating factor in an investigation or formal disciplinary charges, the respondent raises a claim of impairment based on alcohol or substance abuse, or other mental or physical health issues, the Court, upon application of any person or on its own motion, may stay the investigation or proceeding and direct the respondent to complete an appropriate treatment and monitoring program approved by the Court. In making such a determination, the Court shall consider:

(1) the nature of the alleged misconduct;

(2) whether the alleged misconduct occurred during a time period when the respondent suffered from the claimed impairment; and

(3) whether diverting the respondent to a monitoring program is in the public interest."

NEW YORK'S NEW ALCOHOL LAW

On Wednesday September 7, Governor Cuomo signed legislation amending New York's Alcoholic Beverage Control Law: 

 

"The law ensures that the craft beverage industry in New York continues to thrive by amending the ABC Law to include the following:

• Expand Sunday Sales: The law expands Sunday sales at restaurants and bars by changing the statewide opening hours from noon to 10 am. In addition, the agreement enables these licensees to apply for a permit, limited to twelve per year, to sell alcoholic beverages for consumption on the premises on Sundays between 8 a.m. and the new 10 a.m. opening hour in areas outside New York City.
• Eliminate Burdensome Paperwork Requirements for Craft Manufacturers: At the 2012 Wine, Beer and Spirits Summit, Governor Cuomo ended the State Liquor Authority's policy prohibiting multiple manufacturing licenses at the same location, recognizing the additional burdens this placed, for example, on a small winery that wanted to also make whiskey – including building a separate facility. The law combines craft manufacturing licenses into one application to reduce burdensome paperwork for these small businesses.
• Authorize the Sale of Wine in Growlers: Previous law required that wine sold at retail for off-premises consumption be kept in their original sealed containers, and consequently, New York wineries were prohibited from filling growlers. This prohibition unduly burdens wineries that can open a container to sell wine for on-premises consumption, or can sell wine for off-premises consumption, but cannot fill a growler to be taken away from the winery. The law enacts a common sense change to allow wineries to fill their customers’ growlers. In addition, the law authorizes wineries and farm wineries to allow customers to take home partially finished bottles of wine.
• Reduce Fees for Craft Beverage Salespeople: The ABC Law required that any salesperson or solicitor employed by a manufacturer or wholesaler must obtain a solicitor’s permit in addition to a bond. Recognizing the financial hardship imposed by these unnecessary additional fees, the law eliminates the fee for a solicitor’s permit for craft manufacturers and removes the bond requirement for all manufacturers.
• Reduced Fees for Small Wholesalers: The primary business of most alcohol beverage wholesalers is selling their products to licensed retailers, such as bars, restaurants and liquor stores. However, there are currently a number of small wholesalers in New York that sell limited number of brands they import directly to large wholesalers for distribution to retailers. Under the ABC Law, these small wholesalers were required to pay the same amount for their license as their larger counterparts, with costs ranging from $1,460 for a one year beer license to $27,280 for a three year liquor wholesale license. This financial burden often required these small businesses to make a choice between continuing to hold a New York wholesale license or to relocate their business outside of New York. The law creates a low-cost “importer’s license” that is available to wholesalers who sell only to other wholesalers. These businesses may now obtain an importer’s license at a cost of only $125 a year.
• Authorize Gift Wrapping: The law allows liquor stores to sell gift wrapping and gift bags to their customers."

CAN YOU REFUSE TO SERVE PREGNANT WOMAN ALCOHOL?

Not in NYC! Under Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22):

"22. Employment; Pregnancy, childbirth, or a related medical condition.

 (a) It shall be an unlawful discriminatory practice for an employer to refuse to provide a reasonable accommodation, as defined in subdivision eighteen o f section 8-102 of this chapter, to the needs of an employee for her pregnancy, childbirth, or related medical condition that will allow the employee to perform the essential requisites of the job, provided that such employee's pregnancy, childbirth, or related medical condition is known or should have been known by the employer. In any case pursuant to this subdivision where the need for reasonable accommodation is placed in issue, it shall be an affirmative defense that the person aggrieved by the alleged discriminatory practice could not, with reasonable accommodation, satisfy the essential requisites of the job.

 (b) Notice of rights. (i) An employer shall provide written notice in a form and manner to be determined by the commission of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions pursuant to this subdivision to: (1) new employees at the commencement of employment; and (2) existing employees within one hundred twenty days after the effective date of the local law that added this subdivision. Such notice may also be conspicuously posted at an employer's place of business in an area accessible to employees. (ii) The commission shall develop courses of instruction and conduct ongoing public education efforts as necessary to inform employers, employees, employment agencies, and job applicants about their rights and responsibilities under this subdivision.

(c) This subdivision shall not be construed to affect any other provision of law relating to sex discrimination or pregnancy, or in any way to diminish the coverage of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth under any other provision of this section."

That didn't cover it so in May, 2016, the Commission on Human Rights NYC Commission on Human Rights issued Legal Enforcement Guidance on Discrimination on the Basis of Pregnancy: Local Law No. 78 (2013); N.Y.C. Admin. Code § 8-107(22) and stated in Section III (a) (2) (emphasis supplied):

"...While covered entities may attempt to justify certain categorical exclusions based on maternal or fetal safety, using safety as a pretext for discrimination or as a way to reinforce traditional gender norms or stereotypes is unlawful.

Examples of Violations
.....
 • A restaurant policy that prohibits staff from serving pregnant individuals raw fish or alcohol."

To view the guidelines, see  http://www.nyc.gov/html/cchr/downloads/pdf/publications/Pregnancy_InterpretiveGuide_2016.pdf

Of course, under City Council Law 63, all food establishments selling alcoholic beverages for on-premises consumption must still put up signs warning pregnant women that consuming alcohol during pregnancy can cause birth defects. It's just that woman are now free to drink anyway.

VISITATION ISSUES WITH DRUGS AND MENTAL HEALTH

Matter of Waite v Clancy 2016 NY Slip Op 00793 Decided on February 5, 2016 Appellate Division, Fourth Department:

"Memorandum: Respondent mother appeals from an order that awarded petitioner father sole custody and placement of the parties' child and suspended visitation between the mother and the child "until she engages successfully in mental health and drug and alcohol evaluations, and . . . recommended treatment, and upon successful completion of [the] same is reserved the right to file a [m]odification." Contrary to the mother's contention, Family Court's determination to suspend her visitation is supported by a sound and substantial basis in the record inasmuch as the evidence presented at the hearing established that such visitation was detrimental to the child's welfare (see Matter of Christina F.F. v Stephen T.C., 48 AD3d 1112, 1113, lv denied 10 NY3d 710). We agree with the mother, however, that the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations (see Matter of Hameed v Alatawaneh, 19 AD3d 1135, 1136; Matter of Davenport v Ouweleen, 5 AD3d 1079, 1079-1080). We therefore modify the order accordingly. Finally, as we similarly concluded in the mother's related appeal (Matter of VanSkiver v Clancy, 128 AD3d 1408, 1408-1409), the court did not abuse its discretion in denying her attorney's request for an adjournment and in holding the hearing in
her absence."

Note that although the Appellate Division held that "the court lacked authority to condition the resumption of visitation upon her completion of mental health and drug and alcohol evaluations and compliance with all treatment recommendations", nevertheless, the suspension of visitation was upheld. Thus, the mother will face this issue - if she wishes to resume visitation by petition in the future and does not engage in any treatment for her mental health and substance abuse issues, will the court still hold that visitation is detrimental to the child's welfare because there has been no change in circumstances?

LAWYERS AND DRUG ADDICTION

From The Washington Post:

The most terrifying part of my drug addiction? That my law firm would find out.

LAWYERS AND MENTAL HEALTH AND SUBSTANCE ABUSE ISSUES

In "Easy Rider", it was funny for a while. In real life, it is not.

A small minority of lawyers openly acknowledge prior or existing substance or mental health conditions, problem drinking and mental health concerns. But according to a recent and comprehensive landmark study of U.S. lawyers, called “The Prevalence of Substance Use and Other Mental Health Concerns among American Attorneys,”many lawyers are not seeking the help they need.

See http://journals.lww.com/journaladdictionmedicine/Fulltext/2016/02000/The_Prevalence_of_Substance_Use_and_Other_Mental.8.aspx

CHILD CUSTODY - WHEN A PARENT USE DRUGS

Creek v. Dietz, 132 A.D.3d 128, 316 N.Y.S.3d 888 (Fourth Dept. 2015) (italics supplied):


"Respondent father appeals from an order modifying the existing custody and visitation order by, inter alia, directing that he have supervised visitation with the parties' child. Based on the record before us, we conclude that the Referee properly determined that petitioner mother established a sufficient change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child (Matter of Rice v. Cole, 125 A.D.3d 1466, 1467 [internal quotation marks omitted]; see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684). The mother established that the father, who had a long history of substance abuse problems, was again using various illegal drugs, including cocaine, heroin and marihuana (see Matter of Laware v. Baldwin, 42 A.D.3d 696, 696, 839 N.Y.S.2d 618; Matter of Brady v. Schermerhorn, 25 A.D.3d 1037, 1038, 810 N.Y.S.2d 230). Indeed, the father admitted that he had used illegal drugs only a few weeks before the hearing on the mother's petition (see Matter of LaFountain v. Gabay, 69 A.D.3d 994, 995, 891 N.Y.S.2d 728). The mother also established that the father had demonstrated behavioral changes consistent with his behavior during prior periods of time in which he had been using illegal substances, such as missing visitation with the child for extended periods of time.

It is well settled that a determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record, i.e., is not supported by a sound and substantial basis in the record (Matter of Rulinsky v. West, 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [internal quotation marks omitted]; see Matter of Van Court v. Wadsworth, 122 A.D.3d 1339, 1340, 996 N.Y.S.2d 448, lv denied 24 N.Y.3d 916). Here, the Referee made specific findings concerning the potential harm the child faced if the father were to have unsupervised visitation (cf. Laware, 42 AD3d at 697), and we conclude that the Referee's determination to impose supervised visitation is supported by the requisite sound and substantial basis in the record (Rice, 125 A.D.3d at 1467 [internal quotation marks omitted])."