Regulatory Update: NYC Size & Weight Law: The Long and the Short of It

Comedians and conservative commentators have had a field day with New York City’s new law banning employment and accommodations discrimination against people based on their height and weight, but as ridiculous as it may seem on first impression, employers need to keep an eye out for similar new initiatives possibly taking hold where they live.

This change in the city’s civil rights law is part of a growing national campaign to address weight discrimination, with other states and cities considering similar measures, report attorneys Sienna Heard and Jeffery Meyer of the Venable law firm.

Other jurisdictions that have enacted laws to prohibit height and weight discrimination include the state of Michigan and towns of Binghamton, NY; Madison, WI; Urbana, IL; and San Francisco and Santa Cruz in California, all of which now have statutes on the books prohibiting height and/or weight discrimination. The New York State legislature has a similar measure under consideration.

In addition, the nation’s capital, Washington, D.C., prohibits discrimination based on personal appearance, which can be interpreted to include height and weight, according to Heard and Meyer. Across the continent, the state of Washington’s Supreme Court has stated that obesity is covered by that state’s law against discrimination.

Similar legislation also is being considered in the states of Massachusetts, New York State, New Jersey and Vermont. “Employers operating across multiple states should keep this growing trend in mind when making employment decisions and reviewing company policies and procedures,” the attorneys recommend.

New York Mayor Eric Adams, speaking during the May 26 ceremony where he signed the bill enacting the city council legislations, stated, “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. This law will help level the playing field for all New Yorkers, create more inclusive workplaces and living environments, and protect against discrimination.”

Heard and Meyer point out that in an employment context, the law now prohibits employers from falsely representing that a job position is not available, firing, or refusing to hire a person. It also bans discriminating against a person in compensation and other terms of employment based on a person’s height or weight.

While the law primarily aims to protect individuals from inequitable treatment in employment, it also acknowledges certain situations where height and weight requirements may still be valid. Supposedly, safety considerations will take precedence when the city begins enforcing the new statute.

Under the law, the NYC Commission on Human Rights (NYCCHR) will be responsible for identifying specific jobs or categories of jobs in which a person’s height or weight may prevent them from performing essential functions of a job, and no alternative action is available to the employer that would allow that person to fulfill the essential functions of the job.

In addition, the new law carves out an exemption for employers needing to consider height or weight in employment decisions only where it is required by federal, state, or local laws or regulations.

It also will not apply in those situations where NYCCHR judges that such considerations may be given because height or weight may prevent someone from performing essential requirements of a job and no alternative is available or such restrictions is reasonably necessary for the normal operation of the business.

Getting in the Way?

Similarly, this bill would permit consideration of height or weight by operators or providers of public accommodations, according to the city government. “Covered entities under this law would have an affirmative defense that their actions based on a person’s height or weight were reasonably necessary for normal operations,” the mayor’s office stated.

“Mayor Adams just took a big step towards that goal by signing into law a ban on height and weight discrimination in the workplace. This law will change countless workers’ lives for the better,” said Stuart Appelbaum, president of the Retail, Wholesale and Department Store Union (RWDSU). “As a union that represents thousands of workers in the fashion retail industry, we are acutely aware of how size discrimination impacts workers’ job opportunities, as well as their earning potential and career advancement opportunities,” he stressed.

The change is part of a growing awareness of the issues arising from America’s struggle with obesity, which has grown steadily in recent years and is seen as a major factor contributing to the fatality rate of the COVID-19 pandemic, particularly among minority groups but also in the population at large.

In fact, the American Medical Association (AMA) stirred up controversy recently when it described the long-held medical standard of the Body Mass Index (BMI)—often used by doctors to assess obesity—as being racist in its application and has called its use in general medicine “unethical.” BMI is derived by dividing someone’s weight by the square of his or her height in feet and has been commonly used by doctors in recommending courses of action for patients.

AMA also stated that “BMI cutoffs are based on the imagined ideal Caucasian and [do] not consider a person’s gender or ethnicity,” and asserted that development of the measurement in the 19th Century was rooted in the theory of eugenics and was based entirely on body measurements of European men.

Although the U.S. population has been widely seen as generally too obese, resulting in a wave of weight-related diseases like diabetes and heart disease experienced in epidemic proportions, well organized advocates of the overweight population battle the notion that being overweight is inherently bad and argue that health concerns mask discriminatory attitudes and practices.

Among those invited to celebrate Mayor Adams’ public signing of the new city law was Tigress Osborn, chair of the National Association to Advance Fat Acceptance (NAAFA) and co-founder of the Campaign for Size Freedom. “This is such a powerful moment for anyone who has ever faced discrimination simply because of the size of their body,” she declared. “When the mayor of one of the most iconic cities in the world agrees that size discrimination is unacceptable, it sends a message to leaders all over the country, and all over the world, that creating equal opportunities and accessible communities for people of all sizes should be a priority.”

At the same ceremony, the new law’s author, New York City Councilmember Shaun Abreu, noted, “Over 50 years ago, hundreds of body positivity activists gathered in Central Park to protest the daily injustices faced by heavier people. While it took way too long to enact something so basic and widely supported, it is only fitting that the most diverse New York City Council in history is the one to enshrine this anti-discrimination principle into law, in the very city where this movement began.”