*UPDATE: Mayor Adams signed Int. 0209-2022 into law on May 26, 2023. It will take effect on November 22, 2023.
Mayor Eric Adams finds on his desk this week a New York City Council bill that would provide New York City based employees, visitors, and residents protection from discrimination based on their height or weight. The proposed local law would amend Section 8-101 of the Administrative Code of the City of New York, also known as the NYC Human Rights Law (NYCHRL).
On May 11, 2023, an overwhelming majority of the New York City Council (44 out of 51 members) voted to amend the Administrative Code to add two more characteristics, height and weight, to this list. The bill will take effect 180 days after Mayor Adams signs it into law. If he does so, New York City will join a small cohort of places (including Michigan, Washington State and Washington, D.C., to name a few) that have legislated on this issue.
What this means for New York City employers
Employers with employees in NYC should update their training materials and handbooks to include language related to height and weight, which would join the lengthy list of characteristics (real or perceived) that the NYCHRL already protects from discrimination.
As written, however, the bill provides several exceptions for employers. For example, the law “shall not apply to an action … when such action is required by federal, state, or local law of regulation.” Additionally, the bill allows employers that consider height and weight when making employment decisions to raise the affirmative defense that, “a person’s height or weight … prevent [that person from] performing the essential requisites of the job” or that such “consideration of height or weight criteria is reasonably necessary for the execution of… normal operations.” The bill also specifically permits employers to offer incentives that support weight management when part of a voluntary wellness programs. Programs such as step challenges or reimbursements for gym memberships do not appear unlawful. Finally, the bill requires the NYC Commission on Human Rights to adopt rules that identify jobs and job categories that could be excluded from the new law’s requirements.
If you are faced with an employee who alleges weight or height discrimination, your industry or business requires that weight and/or height play a role in hiring/employment, or you simply have questions – Epstein, Becker & Green attorneys stand by ready to advise and assist.