On May 26, 2023, New York City Mayor Eric Adams signed into law an amendment to the New York City Human Rights Law (NYCHRL) that bans employment discrimination on the basis of an individual’s height and/or weight. The amendment thus further expands the comprehensive list of characteristics already protected under the NYCHRL. The law will become effective November 22, 2023.

Prohibitions

Under the amendment, the NYCHRL will generally prevent employers in New York City from denying an employment opportunity or taking an adverse employment action based on the actual or perceived height or weight of an applicant or employee. Similarly, any job advertisements or documentation that directly or indirectly sets limitations based on an individual’s height or weight are prohibited, unless an exemption applies.

Exemptions and Affirmative Defenses

The amendment permits employers to make decisions based on an applicant’s or employee’s height and/or weight only under limited circumstances. Specifically, employers can only take action based on an individual’s height and/or weight when such action is:

• Required by federal, state, or local law or regulation; or
• 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 the person from performing the essential requisites of the job, and
  • The NYCCHR has not found an alternative action that businesses 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 NYCHHR 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.

In addition, if none of the forgoing exemptions apply, an employer can still avoid liability under the amendment if it can establish either of the following affirmative defenses:

1. A person’s height or weight prevents the person from performing the essential requirements of the job, and there is no alternative action the business could reasonably take that would allow the person to perform the essential requirements of the job, or
2. The business’s decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of the business.

The amendment does permit employers to offer incentives that support weight management as part of a voluntary wellness program.

Takeaways and Best Practices

New York City joins several other jurisdictions in protecting individuals against height and/or weight discrimination in the workplace, including Binghamton, New York; Madison, Wisconsin; Urbana, Illinois; Washington, D.C.; San Francisco and Santa Cruz, California; and the State of Michigan. There is similar legislation pending in many other jurisdictions, including New York State, New Jersey, Massachusetts and Vermont.

In light of this recent amendment, employers in New York City should revisit their employment policies, including, but not limited to, their equal employment opportunity and anti-harassment policies, to ensure that height and weight are covered in such policies. New York City employers should also review any training materials to ensure compliance.