Height and Weight Join the Long List of Protected Classes

By Andrew I. Bart

New York City recently enacted a bill that adds two new additions to the lengthy list of protected classes under the New York City Human Rights Law. The law, which will go into effect on Nov. 22, 2023, makes it illegal to discriminate against an apartment buyer, renter, job applicant, independent contractor, or current employee based on the person’s perceived weight and height.

New York City joins six other cities and one state that passed similar legislation. Both New York and New Jersey have comparable pending bills.

At the bill signing on May 26, 2023, Mayor Eric Adams stated that “We all deserve the same access to employment, housing, and public accommodations, regardless of our appearance…It shouldn’t matter how tall you are or how much you weigh when you’re looking for a job, are out on the town, or trying to rent an apartment.”

How will the addition of these broad protected categories affect the operation or management of your property and its workforce?

New Protected Classes Added to Existing Law

The bill amends the New York City Human Rights Law to prohibit discrimination against an employee or applicant’s actual or perceived height and weight. These two new categories will join a long list of other classes protected against discrimination by the city’s Human Rights Law, including gender identity, pregnancy, religion, disability, sexual orientation, immigration status, arrest or conviction record, status as victim of domestic violence, national origin, and race.

The New York City Human Rights Law applies to employers with four or more employees.

Employers Cannot Discriminate Against Employees or Applicants

A New York City employer cannot discriminate against any member of a protected class when making an employment decision, including hiring, firing, promotions, or demotions. The bill adds the categories of weight and height to the long list of protected categories.

Exemptions: There are specific exemptions and affirmative defenses applicable to the two new categories. An employer is exempt from the prohibition if preferential treatment based on height and weight is required by federal, state, local law, or regulation. Such treatment is also permissible if the New York City Commission on Human Rights has identified a particular job for which a person’s height and weight could prevent him or her from performing the essential functions of the job. It will also be permissible if the Commission on Human Rights identified a job for which consideration of height and weight is reasonably necessary for the employer’s normal operations.

Employer Defenses: The bill provides affirmative defenses to an employer facing a potential discrimination charge. As a defense, an employer can demonstrate that a person’s height or weight prevents the person from performing the essential functions of the job and there is no alternative action it can take that would allow the person to perform the job’s essential functions. An employer can also show that its decision based on weight or height is reasonably necessary for its normal operations.

 As an example, a prestigious Manhattan building wants to hire a new doorman and likes its employees to project a certain image. An obese man applies for the job and can perform all the duties involved. The building owner cannot base its decision to not hire him based on his perceived weight. But if the essential function of the job is to carry a certain weight in packages and he cannot do that, the owner could claim that failure as a defense to a discrimination claim.

As another example, a short thin woman applies to be a building’s superintendent. If she can perform the job’s functions and is otherwise qualified, the building owner cannot base its decision based on her weight and height. But if the applicant’s height and weight would impair the building’s normal operations, it could claim this impairment as a defense.

No Discrimination in Apartment Sales and Rentals

Building management cannot discriminate against a potential buyer or renter if he or she is in a protected class. This bill adds weight and height to the protected classes that cannot be discriminated against in housing, whether it be sales or rentals.

As an example, a prestigious building wants to maintain a certain image. It cannot turn down a potential buyer or renter who otherwise qualifies because her perceived weight does not fit the image the owner wants to project. Similarly, a condominium board cannot exercise its right of first refusal (its legal right to buy a unit before a potential purchaser) based on discriminatory grounds, including weight and height.