New York City Bans Bias Against Weight and Height

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Benjamin S. Levine

November 14, 2023

Effective November 22, 2023, New York City will protect a worker’s actual or perceived height and weight in a manner similar to age, race, sex, religion, disability, sexual orientation, and other characteristics that are already protected under New York City Human Rights Law.

Several other cities have adopted similar protections against height and weight discrimination, including: Binghamton, NY; Madison, WI; San Francisco, CA; Santa Cruz, CA; Miami Beach, FL; and Urbana, IL.

The New York City Amendment makes it unlawful for any New York City employer, or agent of an employer, to:

• represent that any employment or position is not available due to an individual’s actual or perceived height and/or weight when it, in fact, is available
• refuse to hire or employ, or bar or discharge from employment, any individual on the basis of their actual or perceived height or weight
• discriminate against any individual in compensation or in the terms, conditions, or privileges of employment on the basis of such person’s actual or perceived height or weight

The Amendment also makes it unlawful for any New York City employer to declare, print, or circulate any statement that expresses a limitation, specification, or discrimination as to height or weight.  This prohibition includes the use of an inquiry as to a person’s height or weight on any form or application for employment.

The Amendment contains several exceptions and defenses to the height and weight provisions, including:

• when such action is required by federal, state, or local law or regulation;
• when the action is permitted by NYC regulations because a person’s height and/or weight could prevent the person from performing the essential requirements of the job, and no alternative action exists that the covered employer could reasonably take that would allow the person to perform the essential requisites of the job;
• where an employer’s decision based on height and/or weight criteria is “reasonably necessary for the execution of the normal operations” of the business.

New York City employers should update their employment hiring and policy documents and materials – including, but not limited to, employee handbooks, anti-discrimination policies, and employee training resources – to address these new anti-discrimination policies.  New York City employers also should train their Human Resources personnel and hiring managers on the new law.  We can help.

*Special thanks to Ava Petrellese, our Paralegal, for her contributions to this article.

The author of this article, Benjamin S. Levine, is a member of the Bars of New Jersey and Pennsylvania.  This article is designed to provide one perspective regarding recent legal developments, and is not intended to serve as legal advice in New York, New Jersey, Pennsylvania, or any other jurisdiction, nor does it establish an attorney-client relationship with any reader of the article where one does not exist.  Always consult an attorney with specific legal issues.