New York City Passes Bill to Ban Weight and Height Discrimination in Employment

By Jill Kahn Marshall and Anna Beckelman

                On May 11, 2023, the New York City Council passed a bill that amends the New York City Human Rights Law to prohibit discrimination based on weight and height in employment, housing, and public accommodations. The bill is expected to be signed into law by Mayor Eric Adams later this month, making New York City the largest city in the country to ban such discrimination. The measure would be enforced by the New York City Commission on Human Rights, which is tasked with investigating and prosecuting complaints under the City’s Human Rights Law.

Many advocates of the bill focused on preventing discrimination against people considered to be overweight, but the bill itself makes no such distinction and sets no particular weight or height parameters.  Instead, the bill broadly states that discrimination based on a person’s weight or height is unlawful.  Thus, unless further guidance on the measure is issued, employees may have a claim if they believe their weight or height contributed to an adverse employment action taken against them, regardless of what their weight or height may be.  The bill contains exemptions where a person’s weight or height prevents them from performing “the essential requisites of the job,” and no reasonable alternative action would allow them to do so, or if weight or height criteria is “reasonably necessary for the execution of the normal operations” of the employer.

Currently, employees who believe they are being discriminated against on the basis of weight have recourse only if they can show that their weight is connected to a medical diagnosis which constitutes a disability – a burden plaintiffs have been able to meet with varying degrees of success. The New York City bill is part of a growing movement to protect against such discrimination, with Michigan and a handful of cities, including San Francisco and Washington, D.C., having already passed laws to this effect. The New York State legislature, as well as lawmakers in Massachusetts and New Jersey, are also considering measures on the subject. A separate bill pending in the New York City Council to ban discrimination in the workplace based on tattoos is similarly aimed at preventing employers from basing employment decisions on superficial characteristics that are unrelated to job performance.

Employers and employees should monitor these developments in order to stay abreast of their rights and restrictions in the workplace, and to update their policies as necessary.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Jill Kahn Marshall, who counsels individuals and corporations in the areas of employment law, litigation and dispute resolution, and healthcare. Ms. Marshall is admitted to practice law in New York and Massachusetts, as well as the District Courts for Massachusetts and the Southern and Eastern Districts of New York.