Tag: New York City Commission on Human Rights

NYC Height & Weight Discrimination

NYC Prohibits Height & Weight Discrimination

As of November 22, 2023, the New York City Human Rights Law (NYCHRL) now includes height and weight as protected characteristics. This legislation is poised to influence similar height and weight discrimination initiatives elsewhere. Accordingly, employers throughout New York State and beyond should take notice.

Height & Weight Protected

On May 26, 2023, Mayor Eric Adams signed NYCHRL amendments that prohibit discrimination based on height and weight in employment, housing, and public accommodations.

Thus, height and weight discrimination are now prohibited in NYC, similar to the existing protections based on race, sex, and marital status (among others). Accordingly, workplace harassment based on height and weight is also unlawful.

Exemptions & Defenses

While the primary aim is to protect individuals from unfair treatment, the law acknowledges situations where height and weight requirements may be necessary.

Height or weight standards may be applied where:

  1. required by federal, state, or local law; or
  2. permitted by regulations of the Commission on Human Rights identifying specific jobs for which
    • the person’s height or weight could prevent performing essential requisites of the job requirements, with no viable alternative action that would allow the person to perform the job; or
    • consideration of height or weight criteria is reasonably necessary for the normal operations of the business.

If not expressly excepted by law or regulation, employers may also assert an affirmative defense based on either of the bulleted circumstances above. But then it is their burden to prove those elements.

Furthermore, the law clarifies that it does not prohibit employers from offering employee incentives through voluntary wellness programs that support weight management.

Implications for Employers

Employers in New York City should take proactive steps to ensure compliance with this new law, including:

  1. Reviewing Hiring Practices: Remove any references to height and weight in job descriptions unless they are demonstrably justified by business necessity.
  2. Updating Policies: Handbooks, training materials, and other policies should now include height and weight as protected categories.
  3. Sector-Specific Considerations: In industries like hospitality and retail, where customer-facing roles are common, it’s crucial to align policies with these new protections against height and weight discrimination. Notably, customer preferences are not a valid defense against height and weight discrimination claims.

Businesses in other parts of New York should also take note of this development. It has become increasingly common for the State Legislature to follow NYC’s lead in enhancing workplace protections. Indeed, a proposed bill on height and weight discrimination is pending in Albany. It would not be surprising if that became law as early as 2024.

 

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New York Pay Disclosure Law

New York City Pay Disclosure Law Finalized

With recent amendments, the anticipated New York City pay disclosure law will take effect on November 1, 2022. Covered employers advertising for positions that could be performed in New York City must identify the minimum and maximum salary or wage for each job.

Covered Employers

The New York City pay disclosure law will apply to employers with at least 4 employees as long as one of them works in NYC. Anyone employing one or more domestic workers in the city is also covered.

Covered Job Postings

The law applies to all jobs, including promotions and transfers, that could be performed “at least in part” in New York City. Covered positions may be working either in a facility operated by the employer or remotely, such as in the employee’s home. Even positions with a combination of work locations would be subject to the New York pay disclosure law if part of the job could be performed in New York City.

Covered job advertisements include “any written description of an available job, promotion, or transfer opportunity that is publicized to a pool of potential applicants.”

However, the law does not require employers to advertise or post for available positions. It only requires that if an employer chooses to post an opening, they must include the compensation range.

Required Pay Disclosure

Covered job advertisements must state both a minimum and maximum annual salary or hourly wage for the available position(s). By law, “the range may extend from the lowest to the highest annual salary or hourly wage the employer in good faith believes at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.”

Though there is little guidance so far on what will qualify as a “good faith” pay range, the New York Commission on Human Rights emphasizes that the range cannot be open-ended. For example, only stating a minimum hourly rate or a maximum salary would be insufficient.

Though unsaid, presumably the New York City pay disclosure range refers to the starting compensation level.

This law does not require employers to advertise any additional information about compensation or benefits such as overtime rates, insurance benefits, or bonus eligibility.

Penalties

A violation of the New York City pay disclosure law will constitute employment discrimination under the New York City Human Rights Law.

Any applicant or employee who feels aggrieved by an alleged violation of the New York pay disclosure law will be able to file a complaint with the New York City Commission on Human Rights. Potential remedies include awarding lost wages and emotional distress damages, among other available relief.

The law contains partial limits on liability, but it is not clear that they will do much to protect employers.

Only current employers may commence a civil lawsuit for a violation of the New York City pay disclosure law. But, again, a much broader scope of individuals have the attractive option of going through an administrative proceeding with the NYC Commission on Human Rights.

The law also provides for no monetary civil penalty for a first violation if the employer cures it within 30 days. However, this does not preclude an aggrieved individual from pursuing and potentially receiving damages in an administrative proceeding. And the NYC Commission on Human Rights may impose penalties of up to $250,000 for uncured or subsequent violations.

Next Steps for NYC Employers

If you have an employee working in New York City, you may need to include a wage or salary range in job postings beginning November 1, 2022. Do you have 4 total employees? Or at least one domestic worker in New York? Could the job you’re hiring for be performed in NYC–even if that’s not the most likely or preferred location?

NYC employers may have the option of not advertising for positions for which they don’t want to disclose a pay range. But if you do post, you will need to decide what a “good faith” wage or salary range is for each position advertised.

 

Could pay disclosure requirements be coming throughout New York State? Follow Horton Law on LinkedIn for our latest updates.

 

Hair Discrimination

New York City Styles Hair Discrimination

On February 18, 2019, the New York City Commission on Human Rights released enforcement guidance about discrimination based on hair. “Hair discrimination” is not per se illegal under either New York State or New York City law. However, this guidance notes that race discrimination, especially anti-black discrimination, takes many explicit and implicit forms. Thus, the New York City Commission’s guidance explains that discriminating against someone because of their hair can constitute employment discrimination.

This appears to be the first legal guidance of this nature in the United States. It focuses on “anti-Black” hair discrimination.

What Is “Hair Discrimination”?

The new guidance proclaims that:

“The New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities.”

The guidance contains more detail, noting “this includes the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.”

Source of Legal Protections

The New York City Human Rights Law does not specifically prohibit hair discrimination. It does broadly prohibit race discrimination in employment and other areas.

This guidance from the New York City Commission on Human Rights does not modify the law itself. Instead, it addresses how discrimination based on hairstyle implicates existing protections. In addition to race, the guidance mentions prohibitions against religion, disability, age, and gender-based discrimination. If an employer uses hair as a proxy for any of these protected characteristics, their actions might violate the NYCHRL. But the guidance focuses on race, and specifically Anti-Black, discrimination.

The NYCHRL applies to employers in New York City with at least 4 employees.

The separate New York State Human Rights Law covers employers throughout the entire State. Though similar legal arguments might be available under the State law, this guidance only pertains directly to the NYC law.

Black Hairstyles as Protected Characteristics

Again, the NYC Commission on Human Rights hasn’t actually changed the law itself. An employee who tries to file a complaint based on their hair will still need to check a different box, such as “race,” as the basis of the discrimination. Nonetheless, this enforcement guidance does go so far as to assert that “Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity.”

The full scope of this newly identified protection remains uncertain. Employers defending against claims based on hair discrimination will likely challenge aspects of the guidance in the future.

According to the guidance: “There is a strong, commonly-known racial association between Black people and hair styled into twists, braids, cornrows, Afros, Bantu knots, fades, and/or locs, and employers are assumed to know of this association.”

Does this mean that employment decisions based on these hairstyles are automatically discriminatory?

Impact on Employee Grooming Policies

There’s little doubt from reading this new guidance that the NYC Commission on Human Rights takes a very broad view on hair discrimination prohibitions. Despite allowing that an employer might have legitimate business reasons for requiring employees to have neatly groomed hair, virtually any restriction that disadvantages anyone with a hairstyle “associated with Black communities” will be legally suspect. To this end, the guidance observes, “an employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”

[Click here to review the full guidance document.]

What Does This Mean for New York Employers?

As the New York City Commission on Human Rights concludes in this guidance, employers within NYC should promptly review their grooming and appearance policies. The Commission further encourages employers to “ensure [these policies] are inclusive of the racial, ethnic, and cultural identities and practices associated with Black and historically marginalized communities.”

Outside of New York City, employers throughout the State should still heed this guidance as a warning. The New York State Division of Human Rights has not issued related guidance on this topic. But it may proceed with similar enforcement sentiments. The state employment discrimination laws protect the same underlying characteristics (including race) that the NYC Commission relies on to ban hair discrimination.

 

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