On May 26, 2023, New York City Mayor Eric Adams signed legislation prohibiting discrimination on the basis of height or weight in employment, housing, and public accommodations. Absent a delay, the law, Intro. 209-A, goes into effect on November 22, 2023. The law amends the New York City Human Rights Law, with height and weight now joining other protected characteristics such as race, color, religion, sex (including pregnancy, sexual orientation, or gender identity), national origin, age, disability, and genetic information, among others.
The New York City Commission on Human Rights will handle the law's enforcement. Because these will be protected classes, discrimination cases will proceed like other discrimination cases, meaning successfully suing employees may be eligible for all the same damages, such as back pay, front pay, reinstatement, punitive damages, attorneys’ fees, and civil penalties.
Exemptions for Employers
The new law provides exemptions to employers needing to consider height and weight in the workplace, including:
- When required by federal, state, or local laws or regulations
- Where the Commission on Human Rights permits such considerations because of height or weight:
- May prevent a person from performing the essential requirements of a job when there is no available alternative; or
- It is reasonably necessary for the regular operation of the business.
Employers also will have an affirmative defense that their actions based on a person’s height or weight were reasonably necessary for normal operations. What “reasonable” means in this context will only become apparent if/when the Commission provides guidance or when matters wend their way through litigation.
Trend
Other jurisdictions already have similar laws prohibiting height and weight discrimination, including:
- Michigan
- San Francisco, California
- Santa Cruz, California
- Washington, D.C.
- Madison, Wisconsin
- Binghamton, New York
New York state, Massachusetts, and New Jersey are considering similar bans, perhaps putting some pressure on other jurisdictions to follow suit.
Guidance for Employers
- Review policies and procedures to ensure compliance with the law;
- Revise employee handbooks to reflect these protected characteristics; and
- Consider potential accommodations for employees of various sizes, such as changes to desks, chairs, and work spaces.
Please reach out to the authors or your Gordon & Rees Employment Law team for further guidance and recommendations.