New York City has joined a growing number of cities to ban discrimination based on height and weight.[1] In early May, the NYC Council passed Intro 209-A[2] (the “Bill”) in an effort to ban discrimination based on height and weight in employment, housing, and public accommodations. On May 26, 2023, Mayor Eric Adams signed the Bill into law, which will amend Section 8-101 of NYC’s Human Rights Law, adding height and weight to the list of characteristics the city has already protected against discrimination. The law will go into effect on November 22, 2023.

In the employment realm, the law bars employers from discriminating based on height or weight by (i) misrepresenting the availability of an employment opportunity, (ii) refusing to hire or employ an applicant, (iii) discharging a person, or (iv) discriminating against a person in compensation or in terms, conditions, or privileges of employment. Additionally, an employer may not circulate any application for employment which expresses any limitation based on height or weight, among other things.[3]

The law does carve out exceptions. Employers may consider the height or weight of an applicant when:[4]

  • required by federal, state, or local law or regulations, or
  • permitted by regulation adopted by the NYC Commission on Human Rights identifying particular jobs or categories of jobs for which (a) a person’s height or weight could prevent them from performing the essential duties of the job, and (b) the Commission has not found alternative action that an employer could reasonably take to allow persons who do not meet the height or weight requirement to perform the essential duties of the job or category of jobs, or
  • permitted by regulation adopted by the Commission identifying particular jobs or categories of jobs for which consideration of height or weight requirements is reasonably necessary for the execution of the normal operations of the employer.

Furthermore, even when no exception applies, an employer may still assert an affirmative defense that:[5]

  • a person’s height or weight prevents the person from performing the essential duties of the job, and there is no alternative action available that the employer could reasonably take that would allow the person to perform the essential duties of the job, or
  • the employer’s decision based on height or weight requirements is reasonably necessary for the execution of the normal operations of the employer.

With the law’s effective date rapidly approaching, NYC employers should revisit their anti-discrimination policies, as well as train their hiring teams on compliance with the new law. Please contact us with any questions you may have.

Thank you to Keith O’Brien for his writing and research assistance.

[1] Other cities include Binghamton, San Francisco and Washington D.C.  Legislation to ban weight and height discrimination have also been introduced in states including New Jersey and Massachusetts.

[2] https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=5570369&GUID=DF289A07-73A5-4AFE-8932-7EA5D1FA6577&Options=&Search=

[3] Other things include age, race, national origin status, marital status, gender, etc.  See note 2.

[4] See note 2.

[5] See note 2.