Client Alert: New York City Set to Ban Discrimination in Employment Based on Weight and Height

May 25, 2023 | By Charles L. Shute Jr.

If all goes to plan, New York City will soon join six other cities and a state that have enacted legislation banning employers from discriminating against applicants and employees on the basis of their height or weight. Such a move is intended to eliminate career barriers that may have previously left opportunities out of reach to many. Like traditional notions of discrimination (think race or sex), the New York City legislation not only prohibits discrimination based on actual height or weight but perceived height and weight as well, which has the potential to create significant additional risk for employers.

As with other forms of discrimination, there are exceptions employers should be aware of. The new legislation does not apply to actions if the action is:

  1. required by federal, state, or local law or regulation;
  2. permitted by regulation adopted by New York City identifying jobs for which a person’s height or weight could prevent the person from performing the essential requisites of the job; or
  3. permitted by regulation adopted by New York City identifying 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 such covered entity. 

While one can likely think of more creative examples involving ubiquitous restaurant chains, the legislation would not, for example, prohibit a police department from imposing physical performance requirements on its recruits.

What does this mean for employers? For starters, the law explicitly states that it does not prevent an employer from “offering incentives that support weight management as part of a voluntary wellness program.” That said, employers may be wise to do some belt-tightening in terms of workplace culture and policies. Where a “frat bro” culture could give rise to sexual harassment claims, a workplace culture that overly encourages “fit” lifestyles may eventually yield the same result – perceived (rightfully or wrongfully) ostracization and isolation of members of a protected category. To avoid getting the short end of the stick, employers in New York City may wish to take the opportunity to revisit their handbooks to ensure it contains language prohibiting conduct in the workplace that may run afoul of this new legislation, which goes into effect 180 days after it is signed by the Mayor.

As always, we will continue to monitor the situation and provide pertinent updates.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

About the Authors

Charles L. Shute Jr.

Senior Counsel

Charlie is an attorney in the Labor & Employment Department, focusing his practice on representing management in all aspects of labor and employment law. Charlie views his clients as his partners and,...

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