By Catherine I. R. Pontoriero, Esq.
*UPDATE – On May 26, 2023, New York City Mayor Eric Adams signed bill 2023/061 prohibiting discrimination based on a person’s actual or perceived height or weight in employment, public accommodations, and housing. The law will go into effect on November 22, 2023.
On May 11, 2023, the New York City Council passed a bill (CLICK HERE) prohibiting discrimination based on a person’s actual or perceived height or weight. The bill is currently before Mayor Eric Adams, who is expected to sign it. If enacted, the bill will take effect 180 days after the Mayor’s signature.
The bill amends the New York City Commission on Human Rights Law to add height and weight as protected characteristics and prohibits discrimination based on a person’s height and weight in employment, public accommodations, and housing.
More specifically, the bill provides that employers cannot, on account of an individual’s actual or perceived height or weight, (a) represent that any employment or position is not available when in fact it is; (b) refuse to hire or discharge the individual; or (c) discriminate against such person in compensation or in other terms, conditions, or privileges of employment. Additionally, the bill prohibits an employer from declaring, printing, or circulating any statement, advertisement, or publication, using any form of application for employment, or making any inquiry in connection with prospective employment which expresses height or weight discrimination.
The bill outlines exceptions when employers may take employment actions based on height or weight. Those exceptions include when the employment action is:
- Required by law or regulation; or
- Permitted by regulation adopted by the New York City Commission on Human Rights identifying particular jobs or categories of jobs for which: (i) a person’s height or weight could prevent performing the essential requisites of the job, and (ii) the Commission has not found alternative action that employers could reasonably take to allow persons who do not meet the height or weight criteria to perform the essential requisites of the job or category of jobs; or
- Permitted by regulation adopted by the Commission identifying particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such employer.
The bill also discusses an affirmative defense to use when an employer’s action is not covered by one of the exceptions. Specifically, employers can assert an affirmative defense if “a person’s height or weight prevents the person from performing the essential requisites of the job, and there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential requisites of the job,” or “the covered entity’s decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.” Under the bill, employers may continue to offer incentives that support weight management as part of a voluntary wellness program.
If enacted, New York City will join a growing number of jurisdictions with height and weight protections, including Michigan; Binghamton, New York; Urbana, Illinois; and San Francisco, California. In addition, the following jurisdictions have pending legislation to protect height and/or weight: New York State, New Jersey, Massachusetts, and Vermont. It should be noted that some jurisdictions also more broadly protect physical appearance, personal appearance, and/or physical characteristics, including Washington D.C.; Santa Cruz, California; and Madison, Wisconsin.
In order to comply with this expected law, employers should review their handbooks and training materials to ensure that height and weight are included as protected characteristics. And, employers should review their hiring and compensation policies to ensure no discrimination based on height or weight. Finally, employers should train managers and supervisors to make them aware of these new protections. NFC will continue to track this law and report on any updates.
If you have further questions when interpreting this bill or need assistance in reviewing your handbooks and/or training materials to ensure compliance, please reach out to the NFC Attorney with whom you typically work or call us at 973.665.9100.