NYCCHR Issues FAQS on Ordinance Prohibiting Discrimination Based on Height & Weight
We previously reported that Mayor Eric Adams signed an ordinance that amended the New York City Human Rights Law (“NYCHRL”) to prohibit discrimination against individuals based on their actual or perceived height and weight. This ordinance took effect at the end of November. The NYC Commission on Human Rights (“NYCCHR”) is drafting rules related to this prohibition, which are expected to be released in the first quarter of 2024. In the interim, employers should look to the FAQS recently published by the NYCCHR concerning this ordinance. This alert does not discuss every FAQ; instead, it highlights a handful of notable FAQS that focus on the impact this ordinance has on employer practices and policies.
As employers may recall, the ordinance recognizes an affirmative defense to a claim of discrimination where (1) a person’s height or weight prevents them from performing core job functions and no alternative action would allow the individual to perform the job or (2) height or weight criteria are reasonably necessary for the execution of an employer’s normal operations. The FAQS offer some helpful guidance on what constitutes an “alternative action” under the first affirmative defense. According to the FAQS, an alternative action is “a practicable measure” that allows an individual to perform core job functions. An alternative action is considered practicable if it does not require a structural modification, material change to operations, or impose a significant cost on the employer. Whether an action is practicable will be based on the circumstances as a whole, and may include the employer’s size, operations, and the timing of the request. The FAQS also provide some examples of measures that will be practicable in most instances. These measures include:
Offering alternative seating so that employees of various body types can utilize the chair that allows them to fulfill core job functions.
Stocking uniforms for all heights and weights or adjusting uniform requirements if a uniform is not suitable for all body sizes.
Providing a ladder or stool to allow an individual access to high shelving units.
While providing an “alternative action” seems similar to providing a “reasonable accommodation”, the FAQS take steps to differentiate the two concepts. Unlike a reasonable accommodation, an alternative action does not require a cooperative dialogue or a process where an employer reviews the employee’s needs and limitations and potential options for an accommodation. An alternative action is simply an adjustment that an employer can practicably make, and does not require a showing of undue hardship. Further, an alternative action does not require an employer to issue any kind of formal determination. In practice, a request for an alternative action may look very similar to a request for a reasonable accommodation, and as such, employers should consult with counsel if they are unsure about a request and how to properly respond to it.
Another issue the FAQS address is facially neutral policies, such as uniform policies. The FAQS stress that facially neutral policies can be discriminatory under this ordinance. For example, a uniform policy that requires all employees to purchase or use uniforms provided by the company could be discriminatory if the employer only stocks uniforms in certain sizes because that practice could result in some employees being unable to obtain uniforms that fit their bodies comfortably. It is important for employers to keep issues like this in mind when crafting and implementing policies that might implicate an employee’s height or weight (e.g., personal appearance or dress code policies).
The firm will continue to monitor this ordinance and the drafting of the rules interpreting it. Employers with questions about this ordinance or how this ordinance may impact their policies or practices should Caroline Secola at csecola@fglawllc.com or any attorney at the firm.
DISCLAIMER: This alert is provided to clients and friends of the firm for informational purposes only and the distribution of this alert is not intended to, and does not, establish an attorney-client relationship. This alert also does not provide or offer legal advice or opinions on any specific factual situations or matters. This communication may be considered Attorney Advertising. Prior results do not guarantee a similar outcome.