New York City has amended its Human Rights Law, Title 8 of the Administrative Code, to prohibit discrimination in employment, housing and public accommodations based on an individual's height and/or weight. Effective Nov. 22, 2023, the law now includes height and weight in its long list of protected characteristics that cannot be used to discriminate against employees.

Although New York is not the first municipality to protect employees on the basis of height and weight, the implications are far reaching as the city covers over 4 million workers. While the law also applies to discrimination in the context of housing and public accommodations, this article will primarily discuss the law's implications in the employment context and will offer guidance for employers seeking to ensure compliance and mitigate risk.

Background and Legislative Framework

Existing federal laws, including Title VII of the Civil Rights Act of 1964 (Title VII) and the Americans with Disabilities Act (ADA), offer very limited protections for appearance-based discrimination absent a simultaneous physiological disorder. See C.F.R. §163022(h); see also Francis v. City of Meriden, 129 F.3d 281, 286 (2d Cir. 1997). Absent federal protection, the burden falls on states and local governments to legislate any such protections. The state of Michigan was the first, and thus far the only, state to adopt weight and height protections in the employment context in 1976. See MCLS §37.2202. Since 1976, a handful of municipalities have followed in Michigan's footsteps, including Santa Cruz, California (1992); San Francisco, California (2000); Binghamton, New York (2008); and Urbana, Illinois (2019).