NYC Joins Other Jurisdictions in Prohibiting Employment Discrimination Based on Height and Weight
New York City (NYC) recently enacted an anti-discrimination law that prohibits discrimination in employment, housing, and access to public businesses based on an individual’s height or weight. This new law will go into effect on November 22, 2023. Once the law goes into effect it will be unlawful for employers, based upon an individual’s height or weight, to falsely represent that any employment position is not available, refuse to hire or employ, to bar or discharge the individual from employment, or to discriminate against the individual in their compensation, or their terms, conditions, or privileges of employment. Both New Jersey and New York state are considering similar legislation.
The new law provides for several exceptions. For example, employers can make decisions based on applicants’ and employees’ height or weight when doing so 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.
Where an employment decision is based on an applicant’s or employee’s height or weight and is not required by law or regulation, an employer will not be liable if 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.
New York City joins one state – Michigan – and several cities prohibiting size discrimination. Binghamton, New York, and San Francisco, California prohibit discrimination based on an individual’s height or weight, and Santa Cruz, California; Madison, Wisconsin; and Urbana, Illinois ban discrimination based on an individual’s physical appearance or characteristics, which are defined to include height and weight. Washington, D.C.’s anti-discrimination law also prohibits discrimination on the basis of an individual’s personal appearance, although height and weight are not specifically included in the definition.
The laws in these jurisdictions stand in contrast to federal law and the laws of most states, where height and weight generally are not considered protected characteristics. The regulations interpreting the Americans with Disabilities Act (ADA) state that “[t]he definition of the term “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight, or muscle tone that are within ‘normal’ range and are not the result of a physiological disorder.” 29 C.F.R. Pt. 1630, App’x § 1630.2(h) (emphasis supplied). While that regulation suggests that an individual who is severely or morbidly obese may be disabled within the meaning of the ADA, most courts that have considered the issue have concluded that obesity alone is not a disability. However, obesity resulting from an underlying medical condition – such as thyroid disease – may be. In addition, employers should keep in mind that obese employees may be able to bring a claim by arguing their employers regarded them as disabled, and any adverse action taken on the basis of that perception could violate the ADA.
Given the new law in NYC and existing law under the ADA, employers should tread cautiously with regard to an obese applicant or an employee who is having difficulty performing his or her job as the result of their weight or height. In particular, employers should:
- Ensure that job descriptions are up to date and that all identified essential job functions – including those designed to address safety – are necessary and narrowly tailored to the requirements of the particular job at issue.
- Focus on the essential functions of the position. Can the applicant or employee perform those safely either with or without a reasonable accommodation? If a requested accommodation is not onerous, the employer may choose to provide it despite uncertainty about whether the individual is actually disabled under the ADA.
Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding employment law issues. For all MEA members, the Hotline is available to provide this assistance. For MEA Essential and Premier members, a Member Legal Services attorney is available for additional consultation.
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*This Alert is provided for general informational purposes only and does not constitute legal advice.