New York City recently enacted a new protection against discrimination based on height and weight, while the New York State Department of Labor issued guidance on the New York Labor Law’s accommodation protections for employees who need to express breast milk, including significant new notice requirements for employers.

NYCHRL’S NEW PROHIBITIONS ON HEIGHT AND WEIGHT DISCRIMINATION

New York City Mayor Eric Adams signed legislation on May 26, 2023 prohibiting discrimination in employment, housing, and public accommodations on the basis of a person’s actual or perceived height or weight under the New York City Human Rights Law (NYCHRL), subject to certain exemptions and defenses, effective November 22, 2023.

The new law’s addition of actual or perceived height and weight to the NYCHRL’s list of protected characteristics means a New York City employer generally will not be able to discriminate based on a person’s height or weight. The NYCHRL, similar to other anti-discrimination laws, prohibits employers from (1) falsely representing a position is not available, (2) refusing to hire, (3) discharging, or (4) discriminating in compensation or other terms, conditions, or privileges of employment on the basis of a protected characteristic.

Further, the NYCHRL prohibits harassment because of protected characteristics and prohibits employers from using job advertisements or any form of employment application to select applicants based on, or inquire into, a person’s protected characteristics for purposes of limiting opportunities of, or discriminating against, prospective candidates.

The law also creates new and unique exemptions that will allow certain employers to consider height and weight in employment decisions if (i) required by federal, state, or local regulation or (ii) pursuant to forthcoming regulations from the New York City Commission on Human Rights.

The anticipated regulations will identify two exemption areas: (1) jobs or job categories for which a person’s height or weight could prevent them from performing the essential duties of the job and where there are no reasonable alternatives that would allow persons not meeting the height or weight criteria to perform those essential duties; and (2) jobs or job categories for which considering height or weight is reasonably necessary for the execution of an employer’s normal operations.

In addition to those exemptions, the law creates two affirmative defenses for employers who consider height or weight in making employment decisions, either of which would allow an employer to defend against a claim of height or weight discrimination: (1) that a person’s height or weight would prevent them from carrying out the essential duties of the job and there are no alternative actions the employer could reasonably take to allow them to carry out such duties; and (2) that considering height or weight is reasonably necessary for executing the employer’s normal operations.

NYS DOL GUIDANCE ON ACCOMMODATIONS FOR EMPLOYEES WHO NEED TO EXPRESS BREAST MILK

Effective June 7, 2023, employers in New York State must comply with the amended New York Labor Law Section 206-c and provide nursing employees a designated area to express breast milk. While the new state law largely mirrors the existing New York City law in effect since 2019, it also creates significant new annual notice requirements.

Specifically, employers are required to distribute a specific model policy created by the New York State Department of Labor (NYS DOL), even if an employer has its own lactation accommodation policy. Employers must provide the NYS DOL–drafted policy to (1) all new employees upon hire, (2) all employees annually thereafter, and (3) employees upon their return to work following the birth of a child.

Just days before the new law’s effective date, the NYS DOL published the model policy that employers must give their employees. The model policy largely tracks the new law but also provides information on contacting the NYS DOL to file a complaint, without suggesting employees reach out to an employer’s human resources team.

The model policy further mentions that employees can file complaints with the US Department of Labor or file a lawsuit regarding violations of the federal PUMP Act that went into effect earlier this year.

The model policy additionally states, in bold, that “an employer may not deny an employee the right to express breast milk in the workplace due to difficulty in finding a location.” This language about “finding a location” is not in the actual text of the law, and it arguably does not accurately reflect the “undue hardship” defense, but it does give a clear indication of how the NYS DOL will interpret the new law.

The model policy must be distributed as prepared by the NYS DOL notwithstanding the fact that these aspects of the model policy are not addressed by the new law.

ANALYSIS

Height and Weight Protections. With the new height and weight discrimination protection law, New York City joins jurisdictions such as the State of Michigan and San Francisco in passing protections against height and weight discrimination.

Ahead of the November 22, 2023 effective date, New York City employers should increase awareness among their managers and human resources teams that height and weight will be protected categories under the law. For example, information on height and weight discrimination and harassment could be incorporated into policy and training materials.

Additionally, employers should assess whether they have any height or weight restrictions or hiring preferences currently in place and, if so, determine whether these characteristics are essential to the performance of the role. Employers should also watch for the forthcoming regulations that should provide additional detail on implementation of the law.

Lactation Accommodation. The New York State lactation accommodation law guidance requires employers to distribute the state model policy upon hire, upon return from parental leave, and on an annual basis to all New York employees. Employers should promptly add the new model policy to employee onboarding materials and return-to-work communications for employees returning from a parental leave and establish a plan for distributing the new model policy as required by law.

Given the differences between the state model policy and the new law, employers should consider whether they want to send employees the state model policy as a standalone document or include it within other materials, such as linking to the state model policy in a handbook or accommodations policy.

Notably, the new model policy is not limited with respect to sex, meaning that employers must provide the new model policy even to employees who do not have the biological ability to express breast milk.

Law clerk Erin N. Flood contributed to this LawFlash.

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