Seyfarth Synopsis:  The New York City Council has passed a bill that prohibits employers from considering a person’s actual or perceived height or weight when making employment decisions.

Personal height and weight are sensitive topics for many.  It is not uncommon for job applicants or employees to fear being overlooked for employment opportunities due to their stature or body type.  Under a Bill passed by the City Council on May 11, 2023, New York City would ease these concerns by expanding worker protections to prohibit discrimination on the basis of height and weight.

The Bill, which will become effective 180 days after Mayor Eric Adams’s expected signature, amends the City’s Human Rights Law to include height and weight in the growing list of protected categories.  Like other protected categories, such as race, national origin, gender, and disability, New York City employers will be prohibited from discriminating against applicants and employees on the basis of their actual or perceived height or weight in all employment decisions.

However, the Bill provides for exemptions where:

• Preferential treatment on the basis of height or weight is required by federal, state, or local law or regulation;
• An individual’s height or weight could prevent them from performing the essential functions of the job with or without an accommodation; or
• A certain height or weight is reasonably necessary for the normal operation of the business.

The Bill charges the New York City Commission on Human Rights with identifying particular jobs or job categories that fit into the above exceptions.

Once the Bill is fully enacted, New York City will join six cities and one state that have enacted similar legislation that protects individuals against height and/or weight discrimination, including Binghamton, New York; Madison, Wisconsin; Urbana, Illinois, Washington, D.C.; San Francisco and Santa Cruz, California; and the State of Michigan.  This number is expected to rise as advocacy for protection against height and weight discrimination gains more traction across the country.  For example, there is comparable pending legislation at the state level in New York, New Jersey, Massachusetts, and Vermont.

Employers with operations in New York City should consider revising their handbooks to include these new protected categories and review hiring policies for unintended violations of this new law.

Seyfarth will continue to monitor and report on the status of this New York City bill.