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.

For more employment law updates, sign up for the Horton Management Law email newsletter and follow us on LinkedIn.