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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.

 

Cooperative Dialogue

Cooperative Dialogue for New York City Employee Accommodations

The New York City Human Rights Law (NYCHRL) now imposes a higher burden on employers regarding workplace accommodations. Whereas most discrimination/accommodation laws rely on an “interactive process,” the NYCHRL requires employers to engage in a “cooperative dialogue” and issue a written determination. Learn more about this increased burden on New York City employers.

Reasonable Accommodations Under the New York City Human Rights Law

The New York City Human Rights Law prohibits discrimination in employment, housing, and places of public accommodations based on numerous protected characteristics. A few of the legally protected categories also afford employees rights to reasonable accommodations:

  1. Disability
  2. Religious beliefs
  3. Pregnancy, childbirth, or a related medical condition
  4. Victims of domestic violence, sex offenses, or stalking

Disability Accommodations

The NYCHRL defines disability as “any physical, medical, mental, or psychological impairment, or a history or record of such impairment, and includes a full range of sensory, mental, physical, mobility, developmental, learning, and psychological disabilities whether they are visible and apparent or not.” Employers in New York City must make reasonable accommodations for individuals with disabilities if they know of or should have known of the disability. However, employers do not have to make an accommodation that would pose an “undue hardship”.

Similar standards apply to accommodations based on the other protected characteristics above.

Cooperative Dialogue

Most other laws requiring employees to make reasonable accommodations, such as the federal Americans with Disabilities Act, envision an “interactive process” between the employer and employee.

Since 2018, the NYCHRL has imposed a higher burden on employees, requiring them to engage in a “cooperative dialogue” with an employee requesting accommodations.

The requirements of cooperative dialogue for employers include:
1. Learning of the employee’s need for accommodation;
2. Initiating a cooperative dialogue;
3. Communicating in good faith with the employee; and
4. Notifying the employee, in writing, of the employer’s determination regarding the accommodation.

The exchange between the employer and employee should adress

  • the individual’s needs and considerations of potential accommodations,
  • alternatives to a requested accommodation, and
  • difficulties that the accommodation may pose to the employer.

Cooperative Dialogue Process

Under the NYCHRL, employers have an affirmative duty to engage in a cooperative dialogue even in some situations when the employee has not requested accommodation. For example, employers may have the responsibility to observe whether an employee’s performance at work has diminished because of a disability. If the employer reaches this belief, then management must initiate a cooperative dialogue with the employee.

The employer should not ask the employee whether they have a disability. Instead, management should ask whether anything is going on that the employer can help with and inform the employee of any available support, including reasonable accommodations. Once the employer engages in the dialogue process, the employee does not waive the opportunity to seek accommodation in the future if they choose not to reveal that they have a disability.

After the parties have engaged in the cooperative dialogue process, the employer must give the employee a final determination identifying any accommodation that was granted or denied.

Duration of Cooperative Dialogue

A cooperative dialogue is ongoing until one of the following occurs:

1. The employer grants a reasonable accommodation; or

2. The employer reasonably concludes that:

  • No accommodation exists that will allow the employee to perform the essential requisites of the job;
  • There is no accommodation available that will not cause it undue hardship; or
  • A reasonable accommodation was identified that meets the individual’s needs, but the individual did not accept it, and no reasonable alternative was identified during the cooperative dialogue.

Good Faith Cooperative Dialogue

When evaluating whether the employer engaged in the accommodation process in good faith, the New York City Commission on Human Rights will consider various factors, including whether the employer:

  • Has a policy informing employees how to request accommodations.
  • Responded to the request promptly in light of the urgency and reasonableness of the request.
  • Sought to obstruct or delay the cooperative dialogue or to intimidate or deter the employee from requesting the accommodation.

Employers violate the NYCHRL if they “refuse or otherwise fail to engage in a cooperative dialogue within a reasonable time with a person who has requested an accommodation or who the covered entity has notice may require such an accommodation.”

Written Determination

After engaging fully in a cooperative dialogue, the employer will decide whether to provide an accommodation. Management must then notify the employee in writing of the determination. After receiving the determination, the employee can continue to make new accommodation requests. In that case, the employer must re-engage in a cooperative dialogue.

What Should Employers Do?

Employers in New York City must comply with these cooperative dialogue requirements in any case where an employee may have a right to a workplace accommodation. Failure to do so is a standalone violation of the NYCHRL.

New York businesses should review the employee policies and procedures to ensure compliance with this relatively new and unusual obligation. Supervisors must understand these requirements and the appropriate way to engage in a cooperative dialogue. Or at least when to make a referral to someone who will handle this process (e.g., human resources).

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