NYC Council Approves Ordinance Prohibiting Discrimination Based on Height & Weight
On May 11, 2023, the New York City Council approved an ordinance that would amend the New York City Human Rights Law (“NYCHRL”) to prohibit discrimination against individuals based on their actual or perceived height and weight. It is expected that Mayor Adams will sign this ordinance.
The ordinance would make it an unlawful discriminatory practice for an employer to make employment decisions based on an employee or candidate’s height and or weight. It would also be unlawful to directly or indirectly express any limitation, specification, or discrimination as to height or weight in advertisements, job applications, or during job interviews.
There are exceptions to the ordinance and it would not apply to actions which are:
required by federal, state, or local law or regulation; or
permitted by regulation adopted by the NYC Commission on Human Rights where:
person’s height or weight could prevent them from performing the essential functions of the job and the Commission has not found alternative action an employer could reasonably take to allow these persons to perform the essential functions; or
due to the employee’s particular job or job category, consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of the employer.
In situations where an employer’s action does not fall under a statutory or regulatory exemption as set forth above, an employer may still attempt to put forward an affirmative defense based on the criteria set forth in the second exemption – even in the absence of firm regulation by the NYC Commission. Additionally, the ordinance does not prevent an employer from offering incentives that support weight management as part of a voluntary wellness program
If the ordinance is signed by Mayor Adams, who has previously expressed his support for this ordinance, it would take effect 180 days after it becomes a law. If you have any questions about the ordinance or your equal employment opportunity policy, please contact Caroline Secola at csecola@fglawlllc.com, or any attorney at the firm.
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