On May 26, 2023, New York City enacted an ordinance amending the New York City Human Rights Law to ban employment discrimination on the basis of a person’s height and weight.¹ This new ordinance further expands the comprehensive list of characteristics already protected by the New York City Human Rights Law.  The ordinance will become effective November 22, 2023.

The ordinance permits employers to make decisions based on applicants’ and employees’ height or weight only under very limited circumstances. They may do so when the decision based on the person’s height or weight is:

• Required by federal, state, or local law or regulation;
• Permitted by regulation adopted by the NYC Commission on Human Rights (NYCCHR) identifying particular jobs or categories of jobs for which the individual’s height or weight could prevent the person from performing the essential requirements of the job and the NYCCHR finds that no other reasonable alternative is available to allow a person to perform the essential requirements of the job; or
• Permitted by regulation adopted by the NYCCHR where it identifies particular categories of jobs for which the use of height or weight criteria is reasonably necessary for the normal operations of the business.

Where an employer’s decision is based on an applicant’s or employee’s height or weight is not required by law or regulation, an employer will not be liable if it can prove either of two affirmative defenses:

1. The individual cannot perform the essential requirements of the job due to the individual’s height or weight, and the employer cannot reasonably take an alternative action that would allow the individual to perform the essential requirements of the job; or
2. The employer’s decision based on height or weight is reasonably necessary for the normal operations of the business.

The new ordinance explicitly permits employers to offer incentives that support weight management as part of voluntary wellness programs.

New York joins several other jurisdictions with similar legislation adding height and weight as protected categories to their respective anti-discrimination laws.  These jurisdictions include Michigan; Binghamton, New York; Madison, Wisconsin; Miami Beach, Florida; San Francisco, California; Santa Cruz, California; and Urbana, Illinois. Lawmakers in other jurisdictions such as New Jersey and Massachusetts have introduced bills to ban height and weight discrimination in recent years. A legislator in the New York State legislature has also introduced a bill in the 2023-2024 legislative session proposing to ban height or weight discrimination in employment, housing, and public accommodations opportunities across the state.

In advance of the law’s November 22, 2023 effective date, employers should turn their efforts to updating their employee handbook and anti-discrimination and anti-harassment policies to ensure height and weight are included as protected categories.  Further, employers may want to review any positions for which there are height and/or weight criteria to understand the business need for such criteria.  Although this ordinance affects NYC employers only, New York and other states have also been actively introducing bills to prevent height and/or weight discrimination in the workplace, so employers operating in multiple jurisdictions should be mindful of this trend.

Littler will continue to monitor and report on any significant developments, including guidance on this ordinance from the NYCCHR.