Key Takeaways

• New protected categories under the New York City Human Rights Law prohibiting discrimination based on height and weight go into effect on November 22, 2023.
• There are limited exemptions employers may rely on where a person’s height or weight prevent them from performing the essential functions of the job or consideration of a person’s height or weight is reasonably necessary to the normal operation of the business.
• Employers should be prepared to update anti-discrimination and hiring policies before the changes go into effect.

As previewed in a prior alert, discrimination based on height or weight is now prohibited in New York City. On May 26, Mayor Eric Adams signed into law the bill that the New York City Council passed on May 11, which adds a person’s “actual or perceived” height or weight to the extensive list of protected categories under the New York City Human Rights Law (NYCHRL). When this amendment to the NYCHRL goes into effect in 180 days, discrimination on the basis of an individual’s actual or perceived height or weight will be prohibited in relation to opportunities of employment as well as for housing and access to public accommodations.

Are There Any Exceptions or Exemptions?

The NYCHRL’s updated provisions will not apply where consideration of height or weight is required by federal, state or local law or regulation. The law also includes an exemption for employers that need to consider height or weight in employment decisions if the consideration is permitted for particular jobs or job categories according to regulations adopted by the New York City Commission on Human Rights, where (1) a person’s height or weight could prevent them from performing the essential functions of the job, or (2) a decision based on a person’s height or weight is reasonably necessary to the normal operation of the business (though no such regulations have been adopted yet).

Even if an employer’s decision is not required by law or permitted by regulation as described above, employers can still defend against claims of height or weight discrimination by showing that a person’s height or weight would prevent the individual from performing the essential functions of a job or that the decision based on height or weight is reasonably necessary to the normal operation of the business.

These changes to the NYCHRL do not prohibit employers from offering, or continuing to offer, incentives that support weight management as part of a voluntary wellness program. For example, employers may continue to offer their employees a stipend to use toward a gym membership without fear that they are running afoul of the law.

What Should Employers Do to Prepare for This Change?

The law takes effect 180 days after signing, on November 22, 2023. In the interim, New York City employers should review and update their employee handbooks, anti-discrimination policies and hiring policies to make clear that discrimination based on height or weight will not be tolerated, just as discrimination based on any other protected category (for example, age, race or national origin) is prohibited. Managers and human resources teams should also be trained to ensure compliance. New York-based employers outside New York City and New Jersey employers should also keep an eye out for future BakerHostetler alerts, as both New York and New Jersey are considering similar state laws.   

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