The New York City council passed a bill on May 11, 2023, prohibiting discrimination on the basis of an applicant's or employee's actual or perceived height or weight. The bill would amend the New York City Human Rights Law to add "height" and "weight" to its list of protected classes and becomes effective 180 days after it is signed into law, which New York City Mayor Eric Adams is expected to do.
Exemptions and Affirmative Defenses
Exemptions – The bill provides for the following exemptions to the general prohibition on discrimination on the basis of height and weight:
- Such action is required by federal, state, or local law or regulation;
- Such action is permitted by regulation adopted by the New York City Commission on Human Rights ("NYCCHR") identifying particular jobs or categories of jobs for which:
- A person's height or weight could prevent performing the essential functions of the job; and
- The NYCCHR has not found alternative action that covered entities could reasonably take to allow persons who do not meet the height or weight criteria to perform the essential functions of the job or category of jobs; or
- Such action is permitted by regulation adopted by the NYCCHR 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 the employer.
Affirmative Defenses – The bill provides the following affirmative defenses related to height and weight discrimination:
- A person's height or weight prevents the person from performing the essential functions of the job, and there is no alternative action the employer could reasonably take that would allow the person to perform the essential functions of the job; or
- The employer's decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of such employer.
While there are no immediate steps to take in response to the bill, employers should:
- Review current employment policies and practices to ensure workers are evaluated on their skills and performance rather than their physical appearance;
- Consider incorporating examples of discrimination on the basis of height or weight into training programs and materials; and
- Be cognizant of necessary adjustments that may be needed in physical spaces, like larger armchairs or step stools.
Notably, the bill permits employers to offer incentives that support weight management as part of a voluntary wellness program.