New York Employment Attorney Blog
As this blog has discussed many times before, most workers want to do their best and to be judged based on what they’ve done on the job, not what they look like, be it in terms of race/color, sex/gender identification, age, or disability. Employment discrimination based on any of those characteristics is illegal in New York City. In a few months, two more categories will be added to that list: height and weight, as a new expansion of the New York City Human Rights Law will be taking effect this November that protects workers on those bases. Whether yours is a size discrimination case, a disability discrimination case, a race or gender discrimination case, or some other type of illegal discrimination, be keenly aware that the odds of achieving your best possible outcome are often enhanced when you retain legal representation provided by an experienced New York employment discrimination lawyer.
In late May of this year, Mayor Eric Adams signed Intro. 209-A, which amends the NYCHRL to make its worker protections even more robust. As of Nov. 22, 2023, discriminating against workers due to their height and/or weight will be deemed an illegal employment practice and a violation of the NYCHRL.
The sponsor of Intro. 209-A hailed the expansion of the city’s anti-discrimination law. “Size discrimination is… a public health threat. People with different body types are denied access to job opportunities and equal wages — and they have had no legal recourse to contest it,” according to Councilmember Shaun Abreu.
The new height/weight-related protections provide many of the same protections as those safeguarding people from discrimination based on race, sex, gender identity, sexual orientation, ethnicity, color, religion, age, disability, and so forth. That means that, after Nov. 22, 2023, employers generally may not deny employment to someone because of their height or weight and may not take any form of “adverse” employment action against a worker because of their size.
Under New York law, an adverse employment action is “any action that negatively affects the terms and conditions” of the worker’s employment. Those actions can include terminations, demotions, suspension, reductions in pay, reductions in hours, reduction in benefits, or lateral transfers to less desirable positions. It can include things like size-related harassment if that abuse negatively impacts your ability to do your job.
As with other forms of illegal discrimination, a worker may have a size discrimination case if she/he alleges either that she/he was a member of a size-based classification… or was perceived to be. So, for example, say you suffered regular fat-shaming harassment from your work supervisor that impeded your ability to do your job. You could have a valid NYCHRL claim if you were an obese person. Even if you weren’t an overweight person but dressed in a manner that resulted in your supervisor perceiving you to be overweight, you still could have a viable case.
This expansion of the NYCHRL is an important step forward for many New York workers. Before the change in the NYCHRL, workers had limited legal options. An obese worker who endured weight discrimination might have had no recourse unless he/she could prove that he/she had a recognized disability and his/her case met all the criteria of a disability discrimination case. For example, an obese person whose obesity was tied to his/her diabetes might have a case but a worker whose obesity was unconnected to any recognized physiological disability might not.
The new law still provides exceptions for some employers and under certain circumstances. For one thing, the new law tasks the New York City Commission on Human Rights with declaring certain jobs to be employment where a worker or job candidate’s height or weight could be a factor that prevents that person from carrying out the essential functions of that job (or class of jobs,) even with an accommodation. In that scenario, the employer is allowed to engage in a certain degree of size-based discrimination. Similarly, if having a worker of a particular height or weight (or height range or weight range) is “reasonably necessary for the execution of the” business’s “normal operations,” then some forms of size discrimination may be allowable.
The Heavy Impact of Size Discrimination on Women
The new expansion of the NYCHRL covers both height and weight, but research shows that, in the workplace, certain groups experience discrimination more acutely than others… and those groups are weight-related ones. In 2014, Vanderbilt University released a report on research related to weight discrimination. The study found that the brunt of weight discrimination falls almost entirely on women, and that brunt imposes the most significant harm on women of color. Specifically, obese men earned roughly the same as men of average weight, and that was true across the spectrum of occupations.
Obese women, however, saw tangible income loss. The study found that a “morbidly obese woman working in an occupation with an emphasis on personal interaction will earn almost 5 percent less than a normal-weight woman working in an occupation with exactly the same emphasis.” Additionally, the study found a direct correlation between a woman’s weight and her likelihood to work a physically demanding job. “As a woman becomes heavier she is actually more likely to work in a physical activity occupation” and “morbidly obese women are the most likely to work in a physically demanding occupation,” according to the research.
Other studies show similar results. A Society for Human Resource Management survey found that roughly one-half of all HR managers “tend to favor working with healthy-weight employees.” A survey by ResumeBuilder found that more than 50% of all overweight workers have experienced weight discrimination in the workplace.
A Downward Trend in Race, LGB+ Bias, But Not Size
Part of the prevalence of this problem is that height/weight discrimination — particularly discrimination against overweight and obese people — regrettably remains less of a sociocultural anathema than other forms of discrimination and bias. Harvard University looked at bias trends from 2007-2020 and found racial discrimination in decline and LGB discrimination similarly going down. Bias against overweight and obese people, however, remained roughly steady across the period.
Cities across the country — from Binghamton to San Francisco (and ones in between like Urbana, Ill. and Madison, Wis.) — have enacted bans on weight discrimination. Michigan has a state law banning weight discrimination.
Neither New York State nor New Jersey has laws banning this type of employment practice at this time. Members of the New York Senate and the New York State Assembly have proposed legislation that would ban height/weight discrimination on multiple occasions, but none of those bills have ever made it out of committee. That includes a New Jersey bill proposed in June 2022 by Senator Andrew Zwicker. In Albany, Assemblywoman Linda Rosenthal from the Upper West Side proposed a ban on size discrimination two months ago. As of this writing, it remains pending before the Standing Committee on Governmental Operations.
Whatever sort of illegal discrimination you have endured in the workplace, the skilled New York employment discrimination attorneys at Phillips & Associates are here to help workers like you. Whether it is filing a charge with the Equal Employment Opportunity Commission, filing a complaint with the Division on Human Rights, or filing a lawsuit in state or federal court, our attorneys have the knowledge and skills to guide you throughout the process. Contact us online or at (833) 529-3476 to set up a free and confidential consultation today.