***UPDATED: Mayor Adams signed the ordinance into law on May 26, 2023.  The law takes effect on November 22, 2023.***

The New York City Council has approved an ordinance that, if enacted, would amend the New York City Human Rights Law (“NYCHRL”) to prohibit discrimination in employment, housing and access to public accommodation based on an individual’s height or weight. The ordinance is currently before Mayor Eric Adams, who has previously expressed support.

Among other things, the ordinance would make it an unlawful discriminatory practice for an employer covered by the NYCHRL to take any of the following steps based on the height or weight of candidates or employees:

(1) represent that any employment or position is not available when in fact it is available;

(2) refuse to hire or employ or to bar or to discharge from employment such person; or

(3) discriminate against such person in compensation or in terms, conditions or privileges of employment.

Furthermore, it would be unlawful for any employer, labor organization or employment agency to publish “any statement, advertisement or publication, or to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination” as to height or weight.

The ordinance includes several exceptions, including when an action is:

  • Required by applicable law or regulation;
  • Permitted by regulation adopted by the NYC Commission on Human Rights (the “Commission”) identifying 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 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 categories 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.

In situations where a covered entity’s action is not covered by an exception described above, the ordinance provides that “it shall be an affirmative defense that (a) 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, 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 (b) the covered entity’s decision based on height or weight criteria is reasonably necessary for the execution of the covered entity’s normal operations. The ordinance also makes clear that covered entities are still permitted to offer incentives “that support weight management as part of a voluntary wellness program.”

If enacted, the ordinance would take effect 180 days after it becomes law. Similar bills have previously been introduced in the New Jersey and New York state legislatures, but appear to have stalled. Protections on the basis of height and/or weight presently exist in other jurisdictions, including Washington, DC, San Francisco, Michigan and Washington State.

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Photo of Evandro Gigante Evandro Gigante

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of…

Evandro Gigante is a partner in the Labor & Employment Law Department and co-head of the Employment Litigation & Arbitration group and the Hiring & Terminations group. He represents and counsels clients through a variety of labor and employment matters, including allegations of race, gender, national origin, disability and religious discrimination, sexual harassment, wrongful discharge, defamation and breach of contract. Evandro also counsels employers through reductions-in-force and advises clients on restrictive covenant issues, such as confidentiality, non-compete and non-solicit agreements.

With a focus on discrimination and harassment matters, Evandro has extensive experience representing clients before federal and state courts. He has tried cases in court and before arbitrators and routinely represents clients before administrative agencies such as the Equal Employment Opportunity Commission, as well as state and local human rights commissions.

Photo of Laura Fant Laura Fant

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns…

Laura Fant is a special employment law counsel in the Labor & Employment Law Department and co-administrative leader of the Counseling, Training & Pay Equity Practice Group. Her practice is dedicated to providing clients with practical solutions to common (and uncommon) employment concerns, with a focus on legal compliance, risk management and mitigation strategies, and workplace culture considerations.

Laura regularly counsels clients across numerous industries on a wide variety of employment matters involving recruitment and hiring, employee leave and reasonable accommodation issues, performance management, and termination of employment . She also advises on preparing, implementing and enforcing employment and separation agreements, employee handbooks and company policies, as well as provides training on topics including discrimination and harassment in the workplace. Laura is a frequent contributor to Proskauer’s Law and the Workplace blog and The Proskauer Brief podcast.

Photo of Arielle E. Kobetz Arielle E. Kobetz

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations…

Arielle E. Kobetz is an associate in the Labor & Employment Law Department and a member of the Employment Counseling & Training Group. Her practice focuses on providing clients with strategies and counseling related to a variety of workplace-related disputes, including employee terminations and discipline, leave and accommodation requests, and general employee relations matters. She also counsels clients on developing, implementing and enforcing personnel policies and procedures and reviewing and revising employee handbooks under federal, state and local law.

Prior to joining Proskauer, Arielle served as a law clerk at the New York City Human Resources Administration, Employment Law Unit, where she worked on a variety of employment discrimination and internal employee disciplinary issues.