NYC Employers Prohibited from Discriminating Based on Height or Weight

On May 26, 2023, New York City Mayor Eric Adams signed into law a bill that expands the protections offered by the New York City Human Rights Law (NYCHRL).  Effective November 22, 2023, the NYCHRL will prohibit discrimination in employment, housing, and public accommodations on the basis of an individual’s actual or perceived height or weight.

In enacting this law, the City joins six other jurisdictions in protecting individuals against height or weight discrimination: Binghamton, New York; San Francisco, California; Santa Cruz, California; Urbana, Illinois; Madison, Wisconsin; and the State of Michigan. Washington, D.C. also prohibits discrimination based on personal appearance, which could include height and weight, and Washington State’s Law Against Discrimination covers obesity. Several additional states, including Massachusetts, New York, New Jersey, and Vermont, are considering enacting similar laws.

Exceptions or exemptions to the newly amended NYCHRL include:

• Where action based on height or weight is required by federal, state, or local law or regulation;

• For certain jobs, or categories of, identified in regulations to be adopted by the New York City Human Rights Commission (NYCHRC) for which:

  • A person’s height or weight could prevent them from performing the essential functions of the job; or

  • A certain height or weight is reasonably necessary for the normal operation of the business.

Even if a particular job is not included in the NYCHRC’s forthcoming regulations, the law provides employers an affirmative defense where an individual’s height or weight prevents them from performing the essential job duties and there is no alternative action the employer could reasonably take to enable the individual to perform those job duties, or where the employer’s action based on height or weight is reasonably necessary for the operation of the business. The new provisions also expressly allow employers to offer incentives through wellness programs that support weight management, such as stipends for gym memberships.

In preparation for the law to take effect on November 22, 2023, New York City employers should revise their policies to ensure that discrimination based on height or weight, in addition to the NYCHRL’s other protected categories, is prohibited. Employers should also review and update their employee handbooks and training materials to include these new protected categories and ensure that their hiring practices remove references to height or weight unless exempted from the law.  To the extent an employer believes that a height or weight restriction may be required for a specific position, the job description for the position should be reviewed and, if necessary, updated to provide support for the restriction.