New York City Council Passes Prohibition on “Height” and “Weight” Discrimination

UPDATE: On May 26, 2023, NYC Mayor Adams signed these amendments into law.  The amendments will take effect 180 days after signature (on November 22, 2023).

The New York City Council has passed a bill amending the City’s anti-discrimination statute (the New York City Human Rights Law or “NYCHRL”) to prohibit discrimination and harassment on the basis of an individual’s “height” and “weight” in employment, housing, and public accommodations.  The bill, which passed by a 44-5 vote, is headed to Mayor Adams for signature (but the bill’s veto-proof supermajority of Council support may render the Mayor’s signature decision meaningless).  Accordingly, NYC employers should consider planning for the bill’s provisions to take hold, which will take place 180 days after its enactment – around the end of this year.

With NYC’s latest measure, the proliferation of personal appearance characteristic protections continues.  It was only a few years ago that New York moved to protect natural hair and hairstyles that are closely associated with racial, ethnic, or cultural identities via the CROWN Act.  And while disability discrimination laws have covered individuals with certain types of appearance-based disabilities (e.g. morbid obesity), NYC’s proposed framework adds significant new protections that would place nearly all height and weight-based considerations outside of the disability discrimination framework.

While the inclusion of these two new appearance-based protected categories are significant in and of themselves, so too are the three exceptions the proposed law includes.  More specifically, employers may take an action based on an employee’s height and/or weight where it is:

• required by federal, state, or local law or regulation; OR
• permitted by NYC Commission on Human Rights regulations as an identified job or category of jobs for which: (a) a person’s height or weight could prevent the performance of the essential requisites of the job, and (b) 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
• permitted by NYC Commission on Human Rights regulations as an identified job or category of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.

But the bill’s carve-outs go further.  More specifically, even if the above exceptions do not apply, the bill still provides an employer with an opportunity to offer the above “essential functions of the job” and/or “business operations” arguments as an affirmative defense in any proceeding.  These exceptions borrow from the concept of “bona fide occupational qualifications” or “BFOQs” which are present in other anti-discrimination contexts – in essence, employers are permitted to consider certain protected factors where they can demonstrate that such factors are an essential qualification for performing a particular job.

It will take time and the issuance of regulations or other guidance by the NYC Commission on Human Rights, along with the development of caselaw, for employers to better understand the scope of these exceptions and how they impact height and weight employment-based decision-making.  For instance, and presuming the NYC Commission on Human Rights is unable to contemplate every type of job that exists across myriad NYC industries, employers may grapple with comprehending when an individual’s height or weight might impact their ability to handle the “normal operation of the business,” or “prevent them from performing the essential functions of the job with or without an accommodation.”  For now, employers may consider certain BFOQ concepts in guiding them; for example, “customer preferences” or similar concepts likely will not serve as a basis for allowing appearance-based employment decisions.

With this new legislation, NYC would become a major new player in the appearance-based discrimination discussion – Michigan, Washington D.C., and the City of San Francisco have adopted similar weight and height measures, and other jurisdictions are considering the same.  Given the NYCHRL’s broad prohibitions that cover not only traditional employees, but also applicants, independent contractors, and interns, this is a significant change for employers.  And, as with other categories protected under the NYCHRL such as race, gender, and disability, NYC employers may not discriminate against individuals because of their actual or perceived height or weight, or otherwise allow for or perpetuate harassment against individuals because of these actual or perceived traits. 

In preparation for the new measure, NYC employers should:

• Reexamine and update their job descriptions where necessary, including by determining where the proposed law’s exemptions apply.
• Review their anti-discrimination/anti-harassment policies to incorporate height and weight as protected categories.
• Update harassment and discrimination training courses, as required by NYC, to highlight these newly developed protected categories.
• Train Human Resources professionals and managers on how these newly proposed requirements will impact day-to-day operations, hiring processes, and employee interactions.

Mintz’s Employment, Labor & Benefits group will continue monitoring these legislative developments and is here to assist employers with these potential new compliance obligations.

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