Height and Weight Discrimination Laws on the Rise: Implications for In-House Counsel

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 Growing Trend of Anti-Body-Discrimination Statutes

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)

Implications of Height and Weight Discrimination Laws for Employers and In-House Counsel

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.”

Guidance for Updating Employment Policies and Practices

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:

1. Update Documents: Begin the process of updating employment policy documents and materials to ensure that any anti-discrimination policies and provisions reflect the new prohibitions against height and weight discrimination. Such policy documents may include employee handbooks, anti-discrimination Equal Employment Opportunity Commission (EEOC) policies, and employee training materials and courses.
2. Educate Employees: Employers should educate employees with the ability to make or affect hiring, firing and other personnel decisions—e.g., supervisors, managers, and human resources departments—on the amendment and inform them that they should not consider height and weight when making any recruiting, disciplinary or other personnel decisions.
3. Update Hiring Materials: Begin updating job postings, job applications and job descriptions to ensure that no recruiting materials could have the appearance or consequence of discriminating against employees, or potential employees, due to their height and weight. Employers should also make updates to ensure such materials do not have the appearance or consequence of deterring such individuals from applying.
4. Review Regulations: Take care to review all regulations and guidance that the relevant city commission promulgates to better understand when and to what extent employers may consider height and weight when taking employment actions.

Resources regarding Body Discrimination for In-House Counsel

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:

• New York City Major Labor and Employment Issues and Employer Best Practices: A practice note that discusses the most significant New York City labor and employment laws affecting employers with workers in New York City and provides employer best practices for compliance.
• Employee Handbook Review Checklist (NY): A checklist that outlines the main issues for private, non-unionized employers to consider when reviewing employee handbooks under federal, New York, and New York City law. Also see Employee Handbook Supplement (NY), which contains customized workplace policies based on New York state and local laws.
• Americans with Disabilities Act: Guidance for Employers: This practice note addresses ADA requirements, enforcement, and defenses. It includes guidance on whether obesity qualifies as a disability under the ADA.
• Labor & Employment Key Legal Development Tracker: This document tracks key legal changes at the federal, state, and local levels that affect Practical Guidance Labor & Employment. Alongside the key legal development, the tracker lists the date of the development (including the effective date) and the specific documents in Practical Guidance Labor & Employment that we updated. The tracker lists the recent legal developments, organized by jurisdiction, in reverse chronological order.

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