New York City Bans Discrimination on the Basis of Height or Weight in Employment, Housing, and Public Accommodations
By: Megan J. Muoio, December 28, 2023
In May 2023, the New York City Council approved, and Mayor Eric Adams signed Local Law 61, which prohibits body size discrimination in New York City. The law, which went into effect in November 2023, amends the New York City Human Rights Law to add an individual’s actual or perceived height and weight to the list of protected characteristics and prohibits discrimination on the basis of those characteristics in employment, housing, and public accommodations. New York City Council Speaker Adrienne Adams hailed the law as the first of its kind in the nation. The law was backed by the Retail, Wholesale, and Department Store Union, which represents workers in the fashion retail industry, and the Retail Action Project, which advocates for retail workers.
Although employers now may not consider height or weight in making employment-related decisions, including in hiring, there are exceptions. Employers would be permitted to consider height or weight: (a) where required by federal, state, or local law or regulation; (b) where the New York City Commission on Human Rights (“CHR”) has identified jobs or categories of jobs for which an employee’s height or weight could prevent the performance of the essential requisites of the job and the CHR has not found alternative action that employers could take to allow those employees to perform the essential requisites of the job; or (c) where the CHR has identified jobs or categories of jobs for which the consideration of height or weight is reasonably necessary for the execution of the employer’s normal operations. To date, the CHR has not identified any jobs or categories of jobs for which the consideration of height or weight may be considered, but is expect to issue regulations addressing these exceptions in the near future. Employers will also be allowed to assert, as an affirmative defense, that the employee or prospective employee’s height or weight prevented them from performing the essential requisites of the job, or that the employer’s height- or weight-based decision was reasonably necessary for the employer’s normal operations.
Employers should immediately review their anti-discrimination policies to ensure compliance with Local Law 61. Employers who believe that their employees’ height or weight affects their business’s normal operation or that their employees’ height or weight prevents the performance of the essential requisites of the job should consult with an employment attorney immediately in order to ensure compliance with the law as well.