On May 26, 2023, Mayor Eric Adams signed into law Intro 209-A, which amends the New York City Human Rights Law (“NYCHRL”) to include a prohibition against discrimination in employment, housing and places of public accommodations based on a person’s actual or perceived height or weight. The amendment will take effect on November 22, 2023.

In the employment context, New York City employers and labor organizations generally will not be able to consider height or weight in deciding whether to take action with respect to any person. For example, these characteristics may not be considered in an employer’s decision to hire, terminate, demote or discipline someone. It will also be unlawful for an employer to subject someone to a hostile work environment on the basis of their actual or perceived height or weight.

There are some exceptions to the general rule. For example, an employer may consider a person’s height or weight in making employment decisions when:

• required by federal, state or local law; or

• permitted by a regulation adopted by the New York City Commission on Human Rights (“Commission”) identifying particular jobs for which (a) a person’s height or weight could prevent the performance of essential job duties and (b) the Commission has not found alternative action that could be taken to allow persons who do not meet height or weight criteria to perform the essential duties of the job; or

• permitted by a Commission regulation identifying particular jobs for which consideration of height or weight is reasonably necessary for an entity’s operations.

Additionally, in the absence of a regulation or law permitting or requiring an employer to consider a person’s height or weight, the employer may still assert an affirmative defense that:

• a person’s height or weight prevents them from performing the essential duties of the job and there is no alternative action the entity could reasonably take to enable the person to perform those duties; or

• the entity’s decision based on height or weight criteria is reasonably necessary for the execution of the entity’s normal operations.

New York City is not the first jurisdiction to ban height and weight discrimination and likely will not be the last. The city of Binghamton enacted a similar local law, and a bill is presently pending in the New York State legislature which would make height and weight discrimination unlawful statewide.

In advance of the law’s effective date, New York City employers should revise their anti-discrimination policies to include height and weight as protected characteristics. Additionally, employers should ensure that all employees across their organizations are aware of the amendment to the NYCHRL, since employers can be held liable for harassment of one employee by others.

For questions concerning the recent amendment to the NYCHRL, please contact Jessica M. Baquet at jbaquet@rmfpc.com or (516) 663-6506.