On May 26, 2023, Mayor Adams enacted into law an ordinance passed by the New York City Council to create new protected categories under the New York City Human Rights Law (“NYCHRL”). This law now amends the NYCHRL and prohibits discrimination in employment, housing and access to public accommodations based on a person’s height or weight.
The law prescribes that an employer may not take any of the following actions based on an applicant’s or employee’s height or weight:
1) represent that any employment or position is not available when in fact it is available;
2) refuse to hire or employ or to bar or discharge from employment such applicant or employee; or
3) discriminate against such person in compensation or in the terms, conditions or privileges of employment.
The law also reads that it is unlawful for any employer, labor organization or employment agency to publish “any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination” as to height or weight.
Notably, however, the law contains several exceptions, including when such an action is:
1) permitted by regulation adopted by the New York City Commission on Human Rights (the “Commission”) 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 categories of jobs;
2) required by federal, state or local law or regulation; or
3) 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.
Further, when an exception listed above does not apply, the law provides that employers may assert one or both of the following as an affirmative defense:
1) a person’s height or weight prevents the person from performing the essential requisites of the job, and there is no alternative action the employer could reasonably take that would allow the person to perform the essential requisites of the job, and there is no alternative action the employer could reasonably take that would allow the person to perform the essential requisites of the job; or
2) the employer’s decision based on height or weight criteria is reasonably necessary for the execution of the employer’s normal operations.
Several other states and cities have already enacted anti-discrimination laws regarding a person’s height and/or weight, and others are currently under consideration.
The law goes into effect in 180 days, or on November 22, 2023.
