Mayor Eric Adams Expands New York City Anti-Discrimination Law

On May 26, 2023, New York City Mayor Eric Adams signed a bill into law expanding the New York City Human Rights Law (Human Rights Law) to prohibit discrimination on the basis of height and weight. The law goes into effect on November 22, 2023, and will prohibit discrimination on the basis of height and weight in employment, public accommodations, and housing. The law will apply to the following covered entities—New York City employers, employment agencies, and labor organizations, and it prohibits them from denying employment opportunities, refusing to hire, or otherwise discriminating against individuals because of height or weight.

Exceptions

There are exceptions to the Law, notably it will not apply to actions by covered entities when determinations based on height and weight are:

• required by federal, state, or local law or regulation, or
• permitted by regulation adopted by the New York City Human Rights Commission (Commission) identifying particular jobs or categories of jobs for which:

- a person’s height or weight could prevent the performance of the essential requisites of the job, and

- the Commission has not found alternative action that covered entities could reasonably take to allow persons who do not meet the height or weight criteria to perform the essential requirements 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 criteria is reasonably necessary for the execution of the normal operations of such covered entity.

Additionally, in instances where a covered entity’s action is not required or permitted by federal, state or local law or regulation, employers may raise affirmative defenses against claims of discrimination on these bases. Specifically, a covered entity may assert that “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,” or that “the covered entity’s decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.” This provision does not prevent a covered entity from offering incentives to support weight management as part of a wellness program.

Takeaways

New York City employers should remove any references to height or weight, not otherwise covered by one of the exceptions described above, from their application and hiring materials, handbooks and other human resource material. All covered entities are also advised to review their policies and practices in anticipation of the November 22, 2023 effective date.