New York City amended its Human Rights Law, effective November 22, 2023, to prohibit discrimination on the basis of height and weight, further expanding the list of protected characteristics under New York City law.
The law applies to all New York City employers and prohibits consideration of height and weight in employment decisions with two limited exceptions — where height and weight factors are: (1) required by applicable law or regulation; (2) permitted by a New York City Commission of Human Rights regulation identifying particular jobs or categories of jobs for which a person’s height or weight (a) could prevent the person from performing essential job requirements, without reasonable alternative; or (b) is reasonably necessary for the execution of normal business operations.
In circumstances where such exceptions do not apply, New York City employers may avoid liability for claims of height or weight discrimination by demonstrating as an affirmative defense: (1) a person’s height or weight prevents the person from performing the essential requirements of the job and the employer cannot reasonably take alternative action to allow the person to do so; or (2) the employer’s consideration of height or weight is reasonably necessary for its normal business operations.
Notably, the New York City law specifically permits employers to offer incentives that support weight management as part of a voluntary wellness program.
New York City employers are encouraged to review and update their handbooks and employment policies to include a person’s height and weight among other already-protected classifications under New York City law (e.g., age, race, creed, color, national origin, gender, disability, marital status, partnership status, caregiver status, sexual and reproductive health decisions, sexual orientation, uniformed service, and immigration or citizenship status) and determine the business need, and any reasonable alternatives, for any height or weight factors associated with a position.
If you have any questions regarding this proposed rule, please contact your labor and employment counsel at Smith, Gambrell & Russell, LLP.