United States: NYC Enacts Law Prohibiting Discrimination Based On Height And Weight

On November 22, 2023, New York City's law banning discrimination in employment, housing, and public accommodations on the basis of an individual's height and/or weight went into effect. The law, signed on May 26, 2023 by Mayor Eric Adams, amends the New York City Human Rights law by adding both "height" and "weight" to the list of protected characteristics under the law. The amendment prohibits New York City employers—that is, employers with employees resident in New York City—from denying an employment opportunity or taking an adverse employment action on the basis of the "actual or perceived" height or weight of employees and job applicants. Further, any job advertisements or similar documents that directly or indirectly set limitations based on height or weight are prohibited.

The law allows employers to make decisions based on applicants' and/or employees' height or weight only under very limited circumstances. They may do so when the decision based on the person's height or weight is:

• Required by federal, state, or local law or regulation;
• Permitted by regulation adopted by the NYC Commission on Human Rights (NYCCHR) identifying particular jobs or categories of jobs for which the individual's height or weight could prevent the person from performing the essential requirements of the job and the NYCCHR finds that no other reasonable alternative is available to allow a person to perform the essential requirements of the job; or
• Permitted by regulation adopted by the NYCCHR where it identifies particular categories of jobs for which the use of height or weight criteria is reasonably necessary for the normal operations of the business.

Further, an employer will not be liable for violating the law if it makes an employment decision based on a person's height or weight that was not required by another federal or state law as long as it can prove either of two affirmative defenses:

• The individual cannot perform the essential requirements of the job due to the individual's height or weight, and the employer cannot reasonably take an alternative action that would allow the individual to perform the essential requirements of the job; or
• The employer's decision based on height or weight is reasonably necessary for the normal operations of the business.

With the passage of this law, New York City joins a number of state and local jurisdictions with laws expressly prohibiting discrimination based on height and weight, including Binghamton, New York; Madison, Wisconsin; Urbana, Illinois; Washington, D.C.; San Francisco and Santa Cruz, California, and the state of Michigan. There is similar legislation pending in many states, including New York, New Jersey, Massachusetts, and Vermont.

New York City employers should review and update their workplace policies, including their anti-discrimination and anti-harassment policies, to ensure height and weight are included as protected characteristics in those policies. Further, employers may want to review any positions for which there are height and/or weight criteria to ensure they understand and can explain the business need for such criteria.