By Nicolas A. Lussier and Nicholas H. De Baun

Seyfarth Synopsis: Effective November 26, 2023, a significant amendment to New York City’s Human Rights Law (NYCHRL) prohibits discrimination based on height and weight. This development aligns the city with a growing trend of jurisdictions, including Michigan and cities of Binghamton, New York; Madison, Wisconsin; and San Francisco, California, focusedon combating size discrimination.

Prohibitions and Exemptions Under the Law

The law generally bars employers, housing providers, and public accommodations in New York City from discriminating based on the actual or perceived height or weight of an individual. This includes employment decisions, housing opportunities, and access to public facilities and services. Employers, in particular, are prohibited from denying employment opportunities or taking adverse actions based on these new protected categories. Similarly, job advertisements or other related documents setting limitations based on an individual’s height or weight are banned, unless qualifying for an exemption.

The law specifies exemptions where action based on a person’s height or weight is necessary. For example, the provisions do not apply to a covered entity where consideration of an individual’s height or weight is:

(1) required by federal, state, or local law or regulation, or

(2) permitted by regulation adopted by the commission identifying particular jobs or categories of jobs for which a person’s height or weight could prevent performing the essential requisites of the job, and the commission 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

(3) permitted by regulation adopted by the commission identifying particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.

Additionally, even if none of the above exemptions apply, an employer can avoid liability by asserting the following affirmative defenses:

(1)  a person’s height or weight prevents the person from performing the essential requisites of the job, and there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential requisites of the job, or

(2) the covered entity’s decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.

Implications for Employers and Best Practices

In light of these new provisions, employers in New York City should revisit and update their employment policies as necessary. This includes ensuring that height and weight are covered in equal employment opportunity and anti-harassment policies. Employers should also review their hiring materials and training programs to ensure compliance with the amended NYCHRL.

The amendment’s broader implications suggest a shift towards more inclusive employment practices, underscoring the importance of evaluating all applicants and workers based on their skills and performance rather than physical appearance. Employers are advised to remove any height and weight references in hiring practices unless they are necessary for the normal operation of the business. Additionally, employers should ensure their handbooks, trainings, and other policies do not inadvertently violate the new law. They should also consider how these protections affect policies for customers and clients in public accommodations.