The city of New York adopted a new law last year banning discrimination against individuals on the basis of their height and weight when it comes to employment, housing and public accommodations. Unless you live in New York City, why should you care? Because similar measures already have been adopted and may be coming to a jurisdiction near you.
Other height and weight antidiscrimination laws have already been enacted in Michigan and Washington State (Washington, D.C., bans discrimination based on “personal appearance”), and proposals are before legislatures in Massachusetts, New Jersey, New York, and Vermont. Statutes also have been adopted by several other cities—Binghamton, N.Y.; Madison, Wis.; Urbana, Ill.; Santa Cruz, CA; and San Francisco—and are under active consideration elsewhere.
If your jurisdiction ends up adopting a law similar to New York City’s, what should you expect? New York’s law covers housing opportunities and access to public facilities and services. Employers in particular are prohibited from denying employment opportunities or taking adverse actions based on these new protected categories.
Similarly, job advertisements or other related documents that establish limitations on hirings and promotions based on an individual’s height or weight are banned, unless the employer qualifies for an exemption, note attorneys Nicolas A. Lussier and Nicholas De Baun of the Seyfarth Shaw law firm.
The law specifies the kinds of exemptions where action based on a person’s height or weight is necessary. For example, the provisions do not apply to a covered entity where consideration of an individual’s height or weight is:
• Required by federal, state or local law or regulation.
• Permitted by regulation adopted by the city identifying particular jobs or categories of jobs for which a person’s height or weight could prevent performing the essential requisites of the job.
• Permitted by regulation adopted by the city identifying particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.
Finding Affirmative Defenses
Even if none of those exemptions apply, Lussier and De Baun say that an employer can avoid liability by asserting these affirmative defenses: A person’s height or weight prevents the person from performing the essential requisites of the job, and there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential requisites of the job.
FAQs issued by the NYC Commission on Human Rights define an “alternative action” as a “practicable measure that allows an individual to perform core job functions.” It should not need to require the employer to make a structural modification, material change to operations, or significant cost.
A legal defense also can arise in situations where the employer’s hiring decision is based on height or weight criteria that are reasonably necessary for the execution of the normal operations of the employer’s operations.
“With weight, numerous studies have found, and many individuals can provide anecdotal accounts that reflect, that workers who are perceived to be too heavy, especially women, are disadvantaged in the workplace,” explains attorney Tracey I. Levy of Levy Employment Law, who works with employers.
“In light of these new provisions, employers in New York City should revisit and update their employment policies as necessary,” Lussier and De Baun recommend. “This includes ensuring that height and weight are covered in equal employment opportunity and anti-harassment policies. Employers should also review their hiring materials and training programs to ensure compliance.”
They add that employers should ensure their handbooks, training content and materials, and other employment policies do not inadvertently violate the new law. They should also consider how these protections affect policies for dealing with customers and clients when it comes to public accommodations.
The broader implications suggest a shift towards more inclusive employment practices, underscoring the importance of evaluating all applicants and workers based on their skills and performance rather than physical appearance, according to Lussier and De Baun. “Employers are advised to remove any height and weight references in hiring practices unless they are necessary for the normal operation of the business.”
Battling Implicit Bias
Levy emphasized, “People are not always as they appear, or as our express or implicit biases may presume them to be. New York City’s new prohibitions against height and weight discrimination, like the multitude of other characteristics protected under the city law, are meant to give employers pause when making employment decisions.”
She added that employers should consider whether they are selecting (or not selecting) the person for a job or promotion “because of skills, knowledge and experience relevant to the position, or whether you are defaulting to presumptions based on how someone looks. The latter may present a legal concern.”
A 2023 survey conducted by the Society for Human Resource Management (SHRM) found that that 15% of workers say that others at work have made false assumptions about them because of their weight at some point in their career. One in five of those who were surveyed also reported having witnessed others being mistreated because of weight discrimination.
The NYC legislation and similar measures across the U.S. were promoted by the National Association to Advance Fat Acceptance (NAAFA), with support from Dove soap (produced by consumer goods company Unilever) and Fat Legal Advocacy, Rights and Education (FLARE), a project of the law office of Solovay Law, which is active in filing discrimination lawsuits on behalf of individual clients.
Those advocating these laws also have pointed out that there is a reliable statistical connection between the amount of weight discrimination and black and Hispanic women in the United States.
“While the likelihood of experiencing name-calling/bullying is similar regardless of ethnic or racial background, the likelihood of being denied certain rights (e.g., been denied treatment for ill health, etc.) is two-times higher for Hispanic non-white women living in larger bodies,” states Dove in its advocacy materials. “This is also true for non-white men with larger bodies vs. white men.”