Reminder for NYC Employers: Prohibition on Discrimination Based on Height and Weight Is Now In Effect
Effective November 26, 2023, the New York City Human Rights Law (“NYCHRL”) is amended to extend anti-discrimination protection based on height and weight.
As previously reported, the amendment prohibits discrimination in employment, housing and access based on an individual’s height or weight. For employers covered by the NYCHRL, the law now prohibits, among other things, refusing to hire or employ an individual or discriminating against them as to compensation or other terms, conditions, or privileges of employment on the basis of height and weight.
It is also now impermissible for any employer, labor organization or employment agency to publish “any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination” as to height or weight.
An affirmative defense is, however, available to employers if they are able to demonstrate that (a) 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 (b) the decision based on height or weight criteria is reasonably necessary for the execution of the employer’s normal operations.
The New York City Commission on Human Rights (the “Commission”) has launched an informal guidance page on the law, which includes frequently asked questions about the new protections. Of note for employers, the guidance defines what constitutes an “alternative action” for purposes of the affirmative defense available to employers under the law where “a person’s height or weight prevents them from performing core job functions and no alternative action would allow the individual to perform the job.” As per the guidance, an alternative action is defined as a practicable measure that an employer can implement that does not require any structural modification, material change to operation, or impose significant cost on a covered employer. The guidance goes on to state that “[p]racticability for an employer will be based on the circumstances as a whole, which may include the employer’s size, operations, and the timing of the request.” It also provides that certain measures will almost always be practicable, such as offering alternative seating or uniform options for all body types and providing a ladder or stool to reach higher shelving. The guidance also makes clear that “clientele preference is not a justification for discrimination.”
Employers should continue to be on the lookout for formal regulations from the Commission on the new protections, which to date have not been issued. In particular, it remains to be seen whether any such regulations, if and when adopted, will expressly exclude any particular jobs, or categories of jobs, where height and weight either is an essential requisite of the job or where consideration of height and weight is reasonably necessary for the execution of normal operation. The law already provides an exception where required by applicable law or regulation.
Covered employers are encouraged to review their anti-discrimination policies and hiring and workplace practices to ensure compliance with the new law.
