New York City bans employment discrimination based on weight and height

At a glance

• On 26 May 2023, the New York City (NYC) mayor signed legislation banning discriminatory conduct based on a person's height or weight, joining six other cities (Washington, DC; San Francisco; Madison, Wisconsin; Urbana, Illinois; Santa Cruz, California; Binghamton, New York) and two states (Michigan, Washington) with similar bans.

Effective from 22 November 2023, employers covered under the New York City Human Rights Law (i.e. those that will have had at least four employees or independent contractors within the preceding 12 months) are prohibited from taking any of the following employment actions based on a person’s height or weight:

• Representing that any employment or position is not available when in fact it is available.
• Refusing to hire or discharging from employment.
• Discriminating in compensation or in terms or conditions of employment.

The law also prohibits covered employers, employment agencies, and labour organisations from (a) declaring, printing, or circulating any statement, advertisement, or publication; (b) using any form of application for employment; or (c) making any inquiry in connection with prospective employment which directly or indirectly expresses any limitation, specification, or discrimination as to height or weight.

Notably, there are several key carve-outs to the new law. Employment actions based on height or weight may be permitted when:

• They are required considerations under federal, state, or local laws or regulations.
• The New York City Commission on Human Rights (the Commission) identifies particular jobs or job categories where (a) height or weight could prevent performing essential job requirements, and (b) the Commission has found no alternative action employers could reasonably take that would allow people who do not meet height or weight requirements to perform essential job functions.
• The Commission identifies jobs or job categories where height or weight are reasonably necessary for the execution of normal operations.

Apart from other applicable legal carve-outs, the measure provides an employer with the following affirmative defences against a height or weight-based discrimination claim:

• A person’s height or weight prevents the person from performing the essential job requirements, and there is no alternative action an employer could reasonably take that would allow the person to perform the essential requirements.
• The employer’s decision based on height or weight criteria is reasonably necessary for the execution of the employer’s normal operations.
• The law also makes clear that it should not be construed to prevent an employer from offering incentives that support weight management as part of a voluntary wellness program.

Going forward

In light of this legislation, NYC employers should consider reviewing their existing job applications and descriptions to confirm that they comply with these new legal requirements and updating their anti-discrimination policies to include height and weight as additional protected classes.

Employers are also encouraged to watch for similar new laws in other jurisdictions. New York State and New Jersey could be next to address this issue as both states currently have pending bills that would prohibit height or weight based employment discrimination. Since these bills are early in these states’ legislative processes, it remains to be seen if they will become law.