Employment Law Update: NYC Employers Weight/Height Discrimination Law Takes Effect on November 22
Date: November 8, 2023
By:
Lisa M. Brauner
Background
On May 26, 2023, New York City Mayor Eric Adams signed into law a City Council bill (Intro. 209A) that amends New York City’s Human Rights Law (“NYCHRL”) to prohibit discrimination based on weight or height in employment, housing, and access to public accommodations.
What Does the Law Prohibit Specifically?
Under the NYCHRL amendment, employers, employment agencies (and labor organizations) in New York City are prohibited from representing that any employment or position is not available when it is available, refusing to hire or employ a person, terminating a person, or otherwise discriminating against such person in compensation, terms, conditions, or privileges of employment, because of that person’s weight or height. The law also prohibits employers from advertising, using any form of employment application, or making any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification, or discrimination as to an individual’s weight or height.
Are There Any Circumstances When an Employer May Lawfully Consider a Job Applicant’s or Employee’s Weight or Height?
Yes, the prohibitions on considering weight or height in taking an employment action do not apply where the action:
(1) is required by federal, state, or local laws or regulations;
(2) the New York City Commission on Human Rights (“the Commission”) adopts a regulation, identifying particular jobs or job categories for which a person’s height or weight could prevent a person from performing the essential functions of the job and the Commission has not found an alternative action available 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 job categories; or
(3) the Commission adopts a regulation identifying particular jobs or job categories for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.
Do These Entities Have Any Legal Defense?
Yes, employers, housing providers, and places or providers of public accommodations (like theaters, sports stadiums, and restaurants) may still raise as an affirmative defense to any lawsuit alleging discriminatory treatment based on weight or height (where none of the above exemptions apply), that: (1) the person’s height or weight prevents the person 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 functions of the job (or in the case of public accommodations, that would allow patrons to use or enjoy the accommodations, advantages, services, facilities, or privileges); or (2) actions that an entity took based on a person’s height or weight were reasonably necessary for normal operations. However, these entities may still need to pay attorneys and incur other costs to raise that affirmative defense in frivolous litigation.
Significantly, the law does not provide an “undue hardship” defense as employers have with respect to employee claims of failure to reasonably accommodate based on a medical condition, sincerely held religious belief, pregnancy, or domestic violence victim status. Nor is there an opportunity for covered entities like housing providers or places of public accommodation to cure a violation before being sued.
This law also appears to allow or require the Commission to second-guess an assessment of an employer, housing provider, or place of public accommodation on whether height or weight is reasonably necessary for normal operations. Specifically, the law seems to require employers to confer with the Commission before making their own business judgments so the Commission can make its own determination of whether there may be an “alternative action” that covered entities “could reasonably take.” It is unclear whether there will be a BFOQ (bona fide occupational qualification) defense available to employers seeking a person of a particular height or weight.
Are There Other Jurisdictions Prohibiting Height/Weight Discrimination?
Michigan is currently the only state that prohibits employment discrimination based on a person’s weight and height. However, several cities -- San Francisco, CA, Santa Cruz, CA, Madison, WI, Binghamton, NY, and Urbana, IL -- have passed laws somewhat similar to the New York City law, and in some cases, with even broader legal protections against discrimination, extending to one’s “physical characteristics” (like Santa Cruz) or “personal appearance” as is the case in Washington, D.C.
Washington State prohibits discrimination based on obesity. New York State’s Assembly and Senate have both introduced parallel legislation to the law just passed in NYC, prohibiting weight and height discrimination in employment, housing, and public accommodations. State legislatures in Massachusetts and New Jersey are also considering laws prohibiting employers from discriminating based on weight.
What are the Penalties for Violation of the Law?
Aggrieved individuals can bring a private right of action to enforce their rights under NYCHRL, or the New York City Commission on Human Rights may conduct its own hearing on a claim of weight or height discrimination. Employers who violate the law may be subject to back pay damages, front pay damages, compensatory damages, punitive damages, attorneys’ fees, expert fees and other costs, civil penalties, and an order granting equitable relief to an aggrieved individual like reinstatement to a position or an injunction.
Was Weight Ever a Protected Category in New York?
Before the passage of this NYCHRL amendment, one’s status of being overweight was not a legally protected category. However, obesity, in certain situations can qualify as a disability under NYCHRL where it is an impairment (typically connected to an underlying medical condition). In such cases, employers are required to engage in a cooperative dialogue with the employee to determine a reasonable accommodation unless doing so would pose an undue hardship on the employer. New York State’s highest court, the New York State Court of Appeals, has held that, under New York State Human Rights Law, weight, in and of itself, does not constitute a disability for discrimination qualification purposes. Several federal circuit courts have ruled that, absent evidence that severe/extreme obesity was caused by an underlying physiological disorder or condition, it is not a physical impairment/disability under the Americans with Disabilities Act.
What Should Employers and Covered Entities Do Now?
Employers with New York City employees, places of public accommodation, and housing providers should be prepared for litigation in connection with these new protections especially in light of the uncertain role that the Commission may have in these entities’ decisions.
Employers with New York City employees and job applicants applying for jobs in New York City may want to consider:
- documenting the legitimate bases for any employment decision, including a decision not to hire or promote an individual who happens to be overweight, short, or very tall, or the bases for their legitimate, nondiscriminatory work-related decision to discipline or terminate an employee who happens to overweight, short, or unusually tall;
- updating their employee EEO policies addressing legally protected categories and other relevant policies to address weight and height discrimination;
- ·reviewing employment applications, job postings, and job descriptions to ensure no preference is expressed for weight or height in employment documents (subject to Commission regulations that would permit such considerations); and
- effectively training managers and employees on these new legal protections to prevent conduct, jokes, or remarks that may disparage individuals because of their height or weight, and to prevent unconscious bias against a person based on that person’s weight or height.
All businesses and nonprofit organizations that are impacted by this new law are well-advised to confer with their legal counsel to anticipate potential legal risks in light of these legal developments.
The information contained here is not intended to provide legal advice or opinion and should not be acted upon without consulting an attorney. Counsel should not be selected based on advertising materials, and we recommend that you conduct further investigation when seeking legal representation.