Yusha Hiraman

Q: Are individuals protected against height and weight discrimination in New York City?
If so, where?

A: Yes.

On May 26, 2023, Mayor Eric Adams signed into law Intro. No. 209-A , which was introduced in the New York City Council by Councilmember Shaun Abreau. Intro. No. 209-A amends Title 8 of the New York City Human Rights Law (NYCHRL) to add protections against discrimination based on height and weight in employment, places of public accommodations and housing. This amendment will go into effect on November 22, 2023. 

Provisions
The NYCHRL applies to “employers who have employed four or more people within the past year, or at least one domestic worker for any period of time” and to employees, whether “full-time or part-time, permanent or temporary, interns or paid workers … regardless of how [or whether] they are paid” and to customers, contractors, and some landlords and tenants.

This amendment adds to a long list of protections covered by the already expansive NYCHRL, which currently includes “race, color, creed, age, national origin, immigration or citizenship status, gender, sexual orientation, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, uniformed service … any lawful source of income, status as a victim of domestic violence or [status] as a victim of sex offenses or stalking, whether children are, may be or would be residing with a person, or conviction or arrest record.”

Once the amendment is effective, New York City employers, places of public accommodations and landlords may not deny individuals opportunities or access or take an adverse action based on an individual’s actual and/or perceived height or weight. This amendment will protect individuals regardless of height (whether an individual is shorter or taller than average) or weight (regardless of size). It also will prohibit job advertisements or similar documents from directly or indirectly setting limitations based on height or weight.

Exceptions
However, the new amendment does come with some exceptions. The provisions related to height and weight will not apply to an action if:

• It was “required by federal, state, or local law or regulation” or
   
• It was “permitted by regulation adopted by 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 actions that covered entities 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
   
• It was “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 covered entity.” (emphasis added throughout)

If a covered entity’s action is not covered under any of the above exceptions, there is still an affirmative defense if:

• An individual’s height or weight prevents them “from performing the essential requisites of the job, and there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential requisites of the job” or
   
• The covered entity’s “decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.”

We note that the amendment explicitly does not prevent a covered entity from offering incentive programs that “support weight management as part of a voluntary wellness program.” (emphasis added throughout)

Conclusion
With this amendment, New York City joins a small group of localities that have already passed laws to prevent height and weight discrimination in their jurisdictions, including Binghamton, New York; Madison, Wisconsin; Urbana, Illinois; San Francisco and Santa Cruz, California; Miami Beach, Florida; and the State of Michigan. In addition, Washington, D.C. bans discrimination based on personal appearance, which can include height and weight. Nevertheless, similar statutes are being considered on state-wide levels, in New York, New Jersey, Massachusetts and Vermont.

Employers with employees, interns and/or contractors performing work for them in New York City must review their employee handbooks and policies to ensure compliance with the recent amendment to the NYCHRL. In addition, as the effective date comes closer, we expect to hear from the New York City Commission on Human Rights, which will identify particular jobs or job categories that fit into the previously mentioned exceptions. We will keep you updated on any further developments.

Wilson Elser’s Employment & Labor Practice is equipped to advise our clients on these matters. For more information, contact Yusha D. Hiraman at 212.915.5252 or yusha.hiraman@wilsonelser.com.