Q: I heard New York City is adding height and weight as protected categories. What does that mean for employers?
A: Effective November 22, height and weight will be added as protected categories under the New York City Human Rights Law. Employers will be prohibited from discriminating against applicants or employees based on their height or weight. There are no definitions for height or weight, meaning these categories are like race or religion, and all ranges of height and weight are protected.
The law will exempt employer action based on height or weight where required by applicable law. The New York City Commission on Human Rights will also issue regulations permitting employers to have height and weight criteria for particular jobs, where not meeting such criteria could prevent a person from performing the essential requisites of the job and there is no alternative action that would allow people who do not meet the criteria to perform the essential requisites. The law also explicitly includes an affirmative defense for employers who can prove: (1) the individual cannot perform the essential requirements of the job due to their height or weight, and there is no alternative action that would allow the individual to perform the essential requirements; or (2) the employer’s decision is reasonably necessary for the normal operations of the business. While the language of (2) seemingly provides for significant employer discretion, employers should be wary of relying upon it until more guidance is provided.
The law explicitly states that it does not prevent employers from offering incentives that support weight management as part of a voluntary wellness program.
New York City joins a growing number of jurisdictions that already prohibit such discrimination — Michigan, select cities in California (San Francisco and Santa Cruz), Illinois (Urbana), New York (Binghamton), and Wisconsin (Madison). Legislation is pending in New Jersey, New York (at the state level), Massachusetts, and Vermont to prohibit height and weight discrimination.
To prepare for the law, employers should update their EEO and anti-discrimination policies, and carefully review any other policies that may be impacted by the law (such as policies that require a certain “look” for a position). Employers who have employees both in New York City and other locations where height and weight are not protected categories should consider whether they want to add a New York City section of protected categories, or make height and weight protected categories for all employees.