New York City is about to become one of only a small number of US jurisdictions to implement protections against height- and weight-based bias at work, a move that will make previously difficult body-size discrimination claims easier for plaintiffs to bring.
The new law that takes effect Wednesday allows for both private lawsuits against businesses as well as bias complaints brought directly through the city’s civil rights agency. It creates a rare form of protection for higher weight people who have long faced widespread discrimination in the workplace and far beyond it.
The New York weight and height protections, like the rest of the city’s human rights law, bar discrimination in employment as well as housing and places of public accommodation. And the passage of body-size bias protections in New York City improves the chances of getting them passed in other US cities and states, as well as internationally, said Tigress Osborn, executive director of the National Association to Advance Fat Acceptance (NAAFA).
“New York is so symbolically important. It’s the global city,” Osborn said. “There’s a lot of inspiration here” for policymakers elsewhere to consider similar laws.
People of higher weights can find themselves less likely to be hired or promoted and face harassment from coworkers, as well as lower pay. Similar workplace disadvantages, such as being underpaid and not taken seriously, can hold true for shorter people.
Michigan is the only US state that explicitly names weight or height in its anti-discrimination laws, and a handful more US cities cover those traits including Binghamton, NY; Madison, Wis.; Santa Cruz, Calif.; San Francisco; and Urbana, Ill. Washington DC bans discrimination on the broader basis of “personal appearance.”
Massachusetts, New Jersey, New York, and Vermont have considered but not enacted statewide bills to ban height and weight discrimination, and it’s likely more states will take up similar proposals in 2024, Osborn said.
Fat Legal Advocacy, Rights & Education (FLARE), which partners with NAAFA on the Campaign for Size Freedom, has modeled legislation that it’s encouraging policymakers to consider.
“The dream is a federal civil rights law,” that includes body-size protections, Osborn said, but her campaign’s focus is on cities and states for now. “We just don’t think that strategically we are ready to pursue a federal law.”
Indirect Protections
Workers seeking to claim size-related bias historically have had to connect the discrimination to another protected category, such as claiming a physical impairment protected under the Americans with Disabilities Act.
Those kinds of claims have met with mixed success in the courts. The Texas Supreme Court rejected a doctor’s obesity bias claim brought under state law after she was dismissed from a Texas Tech University medical residency, finding there must be evidence of an underlying physiological condition in addition to body size to get disability-bias protection. The court said its decision largely matched the way four federal circuit courts have interpreted the ADA in similar cases.
The Washington Supreme Court reached the opposite conclusion in a 2018 case, extending disability bias protection for higher weight people in most instances without having to provide a related medical condition. In that case, a man had sued BNSF Railway Co. after it rescinded a job offer under a company policy setting a maximum body mass index for new hires.
The New York City law “will give a direct way to have those claims out there rather than a back door way,” said Amanda Blair, a New York employment lawyer with Fisher & Phillips LLP.
In Michigan, having specific protections against height and weight discrimination hasn’t resulted in a flood of complaints. The state’s Civil Rights Commission reported 29 complaints based on weight and eight based on height for the fiscal year ending in October 2022, less than 1% of the total 6,357 discrimination complaints filed with the state agency for the year.
Defending Claims, Defining Exemptions
For employers defending against a height or weight bias claim, the legal standards could prove more complicated in certain ways than other protected categories such as race or sex, Blair said.
That’s because workplace discrimination cases often hinge on an employee comparing their alleged mistreatment to the relatively better treatment of similarly situated coworkers who don’t share the same race, sex, or other protected characteristics.
“The concern here for height and weight is most employers are not keeping stats for someone’s height or weight,” so making those comparisons will be tricky, Blair said. Complaints also can sometimes take a couple of years to move through a state or federal agency investigation and find their way into court, after which time coworkers who are potential comparators might have gained or lost weight, she said.
“Those kinds of assessments are going to be hard for the employer to defend against and for the employee or potential employee to state a claim,” Blair said.
The New York City law holds out the possibility that certain occupations will be exempt from the ban on height and weight discrimination. The measure calls for the New York City Commission on Human Rights to issue regulations that spell out the exemptions for jobs where “person’s height or weight could prevent performing the essential requirements of the job.” Employers were still awaiting proposed regulations or guidance from the commission as of Nov. 20.
“Any exceptions will be very narrowly constructed,” said Brandie Solovay, a San Francisco-area lawyer who heads FLARE. New York workers who face discrimination but fall into one of the exceptions for height and weight bias might instead be covered by another area of law such as disability bias, she added.
New York employers also have an affirmative defense against claims, even when there’s no specific exception, if they can argue that they’re making employment decisions for a job where height or weight have a legitimate effect on an employee’s ability to safely perform key functions of their job, said Eve I. Klein, a New York attorney with Duane Morris LLP.
That likely wouldn’t apply to a retail or customer service type of job, for example, where the business simply wants to project a certain image through hiring thin employees, according to Klein.
“Customer preference is clearly not going to be an exception to this, just like customer preference has never been an exemption to race discrimination,” she said.
The hope for advocates is that the law will encourage more inclusive workplaces and public spaces in New York, regardless of any exceptions that might be permitted, Osborn said.
“Even in areas where there are technically exceptions,” she said, “it will still force industry to think about why they need those exceptions and why we can’t make these things work for everybody in the first place.”
