Despite New York City’s already extensive anti-discrimination laws, the New York City Council recently passed a bill outlawing discrimination based on weight and height. Further, the City Council is considering various bills that significantly broaden protected categories for which discrimination is prohibited.
Ban on Weight and Height Discrimination:
Last Thursday, May 11, 2023, the City Council approved a bill that prohibits discrimination on the basis of a person’s height or weight in opportunities of employment, housing, and access to public accommodation. This law, however, includes an exemption for employers who have a “bona fide occupational” reason to consider weight or height, and situations in which there is a public health and/or safety concern. For example, some positions like police officers and firefighters have physical requirements such as a timed run, climbing over a six-foot barrier, or dragging a fire hose. In those cases, the carve-out section of the bill could protect the employer against potential discrimination claims.
Under this bill, complaints about height or weight discrimination would be investigated by the City’s Commission on Human Rights, which already handles complaints of discrimination based on specified protected characteristics, which include age, race, gender, sexual orientation, and disability.
The Commission has investigated at least two situations regarding weight when another protected category like pregnancy or race was involved, including one in which a supervisor allegedly made derogatory comments about a worker’s weight and race. In that situation, as part of the settlement agreement, the employer paid emotional distress damages and civil penalties.
Similar laws exist in Michigan, Washington D.C., San Francisco, Santa Cruz, Binghamton, Urbana, and Madison. In Lamoria v. Health Care Retirement Corp., 230 Mich. App. 801(1998), the Michigan Court of Appeals found a witness’ affidavit detailing a manager’s disparaging statements concerning overweight people to be sufficient to demonstrate a claim of weight-based discrimination. The court indicated that as long as weight was a “determining factor” in the termination of an employee, a claim of weight-based discrimination could succeed—a standard applied by later Michigan courts. A standard like this provides protection for overweight individuals regardless of disability or whether an employment policy has a disparate impact on a protected class. Other states such as New Jersey, Vermont, and Massachusetts are considering similar measures.
Other Proposed Bills:
- Discrimination Based on Tattoos or Body Art/ Int. 0702-2022: This legislation aims to ban workplace bias based on a person’s tattoos or body art. Similar to the bill discussed above, this proposed legislation also has a carve-out provision that allows employers to require employees to cover one or more visible tattoos during work hours if not having a tattoo visible is a “bona fide occupational qualification.”
- Tattoos have historically been associated with notions of rebellion, irresponsibility, and unprofessionalism. Unfortunately, individuals with tattoos often face difficulty in the workplace. Some employers may refuse to hire individuals solely based on their tattoos or require them to conceal tattoos using long-sleeved clothing or bandages. If passed, employers cannot make employment decisions such as terminations solely based on an employee’s failure to cover their tattoo or due to customer complaints about an employee’s tattoos or body art.
- Discrimination Based on Actual or Perceived Poverty/ Int. 0929-2023: This bill bans discrimination in employment and public accommodations based on poverty, whether actual or perceived. Economic discrimination can take on different forms, including hiring discrimination (where a job candidate is not offered a role based on their economic status, or the perception of their economic status or when a candidate is judged harshly due to their address being in a deprived area) and wage discrimination (where an employee is offered compensation the employer feels an employee would accept, even if the figure is lower than that offered to other employees fulfilling the same role).
- Back-to-Work Meetings for New Parents/ Int. 0084-2022: This bill would require employers to hold “onboarding meetings” within two weeks of an employee returning from parental leave, whether paid or unpaid.
- The bill defines an “onboarding meeting” as a meeting between the employer and employee to discuss the “conditions and expectations of employment” when the employee returns to work after their parental leave. The bill also requires that the “substantive agenda” for these meetings adhere to guidelines set by city regulators within 90 days of the law’s enactment.
- Employees would be able to opt out of these meetings by informing their employer in writing. Employers would have to keep documentation of the opt-out records for at least five years and make it available to regulators if requested.
- City-Run Workplace Law Training/ Int. 0640-2022: This bill would require fast-food employees to attend city-run seminars about the City’s various employment laws, with their employer covering the cost. This bill would amend the City’s administrative code covering fair work practices to mandate the Department of Consumer and Worker Protection (“DCWP”) to provide training for workers who are covered under the City’s Fair Workweek Law, outlining workplace laws and their legal rights. Employers would be given 45 days’ notice to make their workers available to attend the two-hour training sessions, which could be conducted by the DCWP itself or another city agency or community organization chosen by the DCWP. The DCWP can also consider employers’ violations of the Fair Workweek Law when deciding which businesses to notify about the training.
Next Steps for NYC Employers:
Employers should review and modify their policies and training programs to conform to the new law banning weight and height discrimination. Employers should also continue to monitor the proposed additional legislation. Additionally, employers may consider professional dress policies that clearly define Bona Fide Occupational Qualifications as it relates to dress and deportment.
Employers should be mindful when making employment decisions unrelated to merit such as based on physical characteristics like height and weight or body art. With the increasing number of states and municipalities strengthening legal safeguards for employees, employers should actively aim to foster an inclusive and diverse work environment. Husch Blackwell’s Labor & Employment Workplace Diversity Equity and Inclusion (DE&I) Team can assist with legal and non-legal challenges related to the development and implementation of workplace DE&I programs.
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