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BLOG / 06.21.23 /Jack Malley
NYC to Prohibit Discrimination Based on Height and Weight
On May 26, 2023, New York City amended the City’s Human Rights Law to bar employment discrimination on the basis of a person’s height and/or weight, which is effective on November 22, 2023.
Exceptions under limited circumstances.
There are exceptions in the law which permit employers to make decisions based on applicants’ and employees’ height or weight under very limited circumstances. They may do so when it is:
- Required by federal, state, or local law or regulation;
- Permitted by regulation adopted by the City’s Commission on Human Rights identifying particular jobs or categories of jobs for which the individual’s height or weight could prevent the person from performing the essential requirements of the job and the Commission finds that no other reasonable alternative is available to allow a person to perform the essential requirements of the job; or
- Permitted by regulation adopted by the Commission where it identifies particular categories of jobs for which the use of height or weight criteria is reasonably necessary for the normal operations of the business.
Additionally, when an exemption is not applicable, an employer will not be liable if it can prove either of two affirmative defenses:
- A person’s height or weight prevents them from performing the essential requirements of the job, and the employer cannot reasonably take an alternative action that would allow the person to perform the essential requirements of the job; or
- The employer’s decision based on height or weight criteria is reasonably necessary for the execution of normal operations of the business.
The amendment expressly allows employers to offer incentives that support weight management as part of their voluntary wellness programs.
A trend towards expanding workplace protections.
NYC joins a number of other jurisdictions in explicitly protecting individuals against height and weight discrimination in the workplace. These include Binghamton, New York; Madison, Wisconsin; Miami Beach, Florida; San Francisco and Santa Cruz, California; Urbana, Illinois; and the State of Michigan. In addition, a bill introduced in the 2023-2024 New York State legislative session is proposing a statewide ban on height or weight discrimination in housing and public accommodations opportunities as well as employment.
How to ensure compliance.
City employers are advised to begin taking steps now to ensure compliance with the amendment. Such steps should include identifying the positions impacted by the law and revising anti-harassment policies and employee handbooks. You should also review and update written hiring policies and application forms, and train interviewers and hiring managers on the law’s requirements.
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