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By Elias Kahn | LexisNexis Practical Guidance
New York City became the largest city in the nation to ban discrimination on the basis of height or weight when it comes to employment decisions under a bill signed by Mayor Eric Adams in May 2023.
“We all deserve the same access to employment, housing and public accommodation, regardless of our appearance,” said Mayor Adams. “It shouldn’t matter how tall you are or how much you weigh when you’re looking for a job.”
The new NYC statute—which will take effect on Nov. 22, 2023—allows for certain employer exemptions if a person’s body size would prevent them from meeting the essential requirements of a job. But it clearly establishes height and weight as protected categories alongside age, race, sex, religion, and other personal characteristics.
“(New York City) joins a small but growing group of cities and states that have enacted anti-body-discrimination measures, such as Washington, D.C.; San Francisco; Santa Cruz, Calif.; Binghamton, N.Y.; Urbana, Ill.; Madison, Wisc.; and Michigan,” reported Law360 and republished in Lexis Practical Guidance. (See Employer Tips For Complying With NYC Weight Bias Ban)
The proliferation of these new statutes is particularly noteworthy for in-house counsel because “the vast majority of federal and state courts still hold that weight and height is not a disability under the ADA ([Americans with Disabilities Act]) or its state-level equivalents,” writes Collin Brodrick of Ogletree Deakins (See Obesity As A Disability Under The Americans with Disabilities Act). For example, the Texas Supreme Court ruled on June 30, 2023 that the Texas Commission on Human Rights Act does not cover workers with morbid obesity unless their obesity is due to another underlying condition. [Tex. Tech Univ. Health Scis. Ctr. - El Paso v. Niehay, 2023 Tex. LEXIS 625 (June 30, 2023] Brodrick added: “We will likely continue to see a piecemeal approach from courts and policymakers.”
Jonathan Wexler and Taylor McCann, employment attorneys at Vedder Price PC, shared some specific insights in a recent Law360 column about how employers should begin considering updates to their employment policies and practices in light of these new body size discrimination statutes. These tips include:
In-house attorneys need to track this growing trend of state and municipal governments enacting anti-body-discrimination statutes as the laws have the potential to impose serious new employment requirements on companies. Lexis Practical Guidance offers a number of resources to assist with the monitoring of applicable laws and appropriate responses, including:
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