Effective November 22, 2023, New York City has added height and weight to the list of characteristics protected against discrimination in employment, public accommodations, and housing (and other real estate). New York City joins a growing list of cities and states that protect these characteristics. According to Mayor Eric Adams, this change “will help level the playing field for all New Yorkers, create more inclusive workplaces and living environments, and protect against discrimination.”
In the employment context, anti-discrimination protections cover decisions about hiring, firing, compensation, and more. Anti-discrimination protections also reach day-to-day workplace behavior. Under the New York City Human Rights Law, an employee who is harassed or otherwise treated worse than other employees, because of a protected characteristic, may have a claim for a hostile work environment. (New York City has a broader definition of “hostile work environment” than federal law. This means that even for characteristics protected under both federal and New York City law, behavior might be actionable under New York City law even if it is not actionable under federal law.) The law reaches both actual and perceived characteristics—protection of perceived characteristics is especially relevant in remote and hybrid work environments.
Employees will have the same administrative rights and remedies for violations as they did previously for all claims of other protected characteristics.
Notably, there are exceptions to the law when required by federal, state or local law or regulation, permitted by regulation for particular jobs or categories of jobs for which a person’s height or weight could prevent performing the essential requisites of the job, or permitted by regulation for particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of the employer. In all other instances, employers have a defense to anti-discrimination claims if the person’s height or weight prevent them from performing the essential requisites of the job without reasonable accommodation, or the employer’s decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of the employer. These types of factual issues are often disputed, so employers should generally consult with legal counsel before making a decision based on height or weight. (The law does specifically note that nothing in it prevents an employer from offering incentives that support weight management as part of a voluntary wellness program.)
Employers should take this opportunity to ensure compliance and may want to revisit their nondiscrimination policies.
