Background and Purpose of the Law
On May 26, 2023, New York City Mayor Eric Adams signed Intro. 209-A into law, declaring, "[w]e all deserve the same access to employment … regardless of our appearance and it shouldn't matter how tall you are or how much you weigh," and that "[w]hen you're looking for a job …, you should not be treated differently." The Law added protected categories to an already impressive list of factors that a New York City employer cannot consider in making employment-related decisions. The law protects both applicants and employees from discrimination based upon their actual or perceived height or weight.
The protected categories and statuses under the New York City Human Rights Law (NYCHRL) include height, weight, age, immigration or citizenship status, color, disability, gender, gender identity, marital status and partnership status, national origin, the need for pregnancy and lactation accommodations, race, religion/creed, sexual orientation, status as a veteran or active military service member, arrest or conviction record, caregiver, credit history, testing positive for marijuana in a pre-employment drug test, unemployment status, sexual and reproductive health decisions, salary history, and status as a victim of domestic violence, stalking or sex offenses.
Nothing in the Law prevents employers from offering incentives that support weight management as part of voluntary wellness programs.
New York City Joins an Expanding List of Jurisdictions
New York City joins the following cities in banning discrimination based on height and weight: Binghamton, New York; Madison, Wisconsin; Miami Beach, Florida; San Francisco and Santa Cruz, California; and Urbana, Illinois. Statewide, only Michigan has an explicit statutory prohibition on employment decisions based on height or weight. Proposed legislation is pending in New Jersey, Massachusetts, Vermont and New York. Washington, D.C., bars employment decisions based on "personal appearance," which may include an individual's height and weight.
When Can Employers Consider Height or Weight in Making Employment-Related Decisions?
Despite the broad coverage of the Law, employers are allowed to consider height or weight in the following limited circumstances: a) when required by federal, state, or local law or regulation, or b) where provided for under the regulations promulgated by the New York City Commission on Human Rights (NYCCHR) that "identif[ies] 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 on Human Rights] has not found alternative action 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 "identif[ies] particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the [employer's] normal operations."
Even outside of the express allowances by the various governmental authorities, if an employer makes a decision on an application for employment or concerning a current employee based upon the individual's height or weight, that employer will not be deemed to have violated the new law so long as the employer can demonstrate a) the individual "cannot perform the essential requisites of the job" due to the individual's height or weight (with or without a reasonable accommodation provided by the employer) or b) the employer's decision (based on height or weight) is "reasonably necessary for the execution of the normal operations" of the business.
What Should Employers Do Now?
Covered employers should review their at-issue hiring and employment practices and, if necessary, update all relevant written materials, starting with the employee handbook, equal employment and antidiscrimination/harassment policies, training materials, etc., to include and cover height and weight protections. Employers also should immediately review their positions that may have height and/or weight requirements or limitations and pressure-test the need for such necessities against the Law's requirements/protocols. Finally, employers should examine, and to the extent necessary revise, current job postings that contain any position requirements implicating height or weight.
