On May 26, 2023, Mayor Eric Adams signed into law a bill that expands New York City's anti-discrimination laws, adding height and weight as protected characteristics under the New York City Human Rights Law. Effective on November 22, 2023, this law prohibits discrimination in employment, housing, and public accommodations based on an individual's height and weight. This update is part of a growing national campaign to address weight discrimination, with other states and cities considering similar measures.
In the employment context, the law now prohibits employers from falsely representing that a job position is not available; firing or refusing to hire a person; or discriminating against a person in compensation and other terms of employment based on a person’s height or weight. While the law primarily aims to protect individuals from inequitable treatment, it also acknowledges certain situations where height and weight requirements may still be valid. Exemptions exist when an employment decision based on an applicant or employee’s height or weight is:
- Required by federal, state, or local law;
- Permitted by regulation adopted by the NYC Commission on Human Rights (NYCCHR) identifying specific jobs or categories of jobs in which a person’s height or weight may prevent them from performing essential functions of a job, and no alternative action is available to the employer that would allow the person to fulfill the essential job functions; or
- Permitted by regulation adopted by the NYCCHR identifying specific jobs or categories of jobs for which the use of height or weight criteria is reasonably necessary for the normal operation of the business.
When an employment action based on a person’s height or weight is not required nor permitted by a law or regulation, employers have two options for affirmative defenses:
- The person cannot perform the essential job requirements due to their height or weight, and there is no alternative action the employer can take that would allow the person to perform the essential requirements of the job; or
- The employer’s decision based on height or weight is reasonably necessary for the normal operations of the business.
The law also specifically permits offering employee incentives through wellness programs that support weight management, allowing for employer flexibility in promoting a healthy workforce.
With this new legislation, New York City joins other jurisdictions in prohibiting height and weight discrimination. The State of Michigan; Binghamton, New York; Madison, Wisconsin; San Francisco, California; Santa Cruz, California; and Urbana, Illinois all have similar statutes prohibiting height and/or weight discrimination. Additionally, Washington, D.C. prohibits discrimination based on personal appearance, which can be interpreted to include height and weight, and the Washington Supreme Court has stated that obesity is covered by Washington State’s Law Against Discrimination. Similar state legislation is also being considered in Massachusetts, New York State, New Jersey, and Vermont, so employers operating across multiple states should keep this growing trend in mind when making employment decisions and reviewing company policies and procedures.
New York City employers should plan to take proactive measures to ensure compliance with the new law prior to the November effective date. Specifically, employers should consider reviewing company hiring practices and removing any references to height and weight, unless justified by business necessity. Handbooks, training materials, and other policies should be updated to include the new protected categories of height and weight. Employers should also consider the potential impact of this law on the business, particularly in sectors such as hospitality and retail, where policies for guests and customers must also align with the new protections against height and weight discrimination. By taking these steps, employers can both reduce the legal risk of unintended violations and incentivize a healthier workforce.
Venable LLP will continue to monitor developments in this area and provide updates as they arise. In the meantime, if your organization has any questions about complying with this law, please contact the authors of this article or any attorney in Venable's Labor and Employment Group.