New York City Council Approves Bill to Ban Employment Discrimination Based on Height and Weight

On May 11, 2023, the New York City Council approved a bill to prohibit employment discrimination on the basis of an individual’s height or weight. The bill, Int. No. 209-A, was sent to Mayor Eric Adams for final approval following a 44–5 vote.

If enacted, Int. No. 209-A would amend the New York City Human Rights Law to add both weight and height to the city’s already long list of protected characteristics. The law would prohibit employers from discriminating on the basis of applicants’ or employees’ actual or perceived height or weight.

Quick Hits

• No. 209-A would prohibit discrimination based on employees’ or applicants’ perceived or actual height and/or weight.
• The bill would provide employers with affirmative defenses for employment-based decisions regarding height or weight in the performance of the essential requisites of a job.
• The bill will become effective 180 days after the mayor signs it.

Int. No. 209-A would allow employers to consider height or weight in the following limited circumstances:

• when required by federal, state, or local law or regulation; or
• when permitted by regulation adopted by the New York City Commission on Human Rights that:
  • “identif[ies] particular jobs or categories of jobs for which (i) a person’s height or weight could prevent performing the essential requisites of the job, and (ii) the [Commission on Human Rights] 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 requisites of the job or category of jobs”; or
  • “identif[ies] particular jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the [employer’s] normal operations.”

Even if not required by any law or regulation, Int. No. 209-A would also allow employers to assert, as an affirmative defense, that:

• “a person’s height or weight prevent[ed] the person from performing the essential requisites of the job”; and
• the employer’s height- or weight-based decision was “reasonably necessary for the execution of the [employer’s] normal operations.”

Notably, nothing in the law would prevent covered employers from offering incentives that support weight management as part of a voluntary wellness program.

If approved by Mayor Adams, Int. No. 209-A will become effective 180 days after receipt of his signature.

Next Steps

If Int. No. 209-A is enacted, employers may want to review their anti-discrimination policies to ensure compliance with the New York City Human Rights Law, as amended.

Ogletree Deakins’ New York office will continue to monitor developments with respect to Int. No. 209-A and will post updates on the New York blog as additional information becomes available. Important information for employers is also available via the firm’s webinar and podcast programs.