Dive Brief:

• A New York City law adding height and weight to the city’s list of protected workplace categories took effect last week, giving new grounds to employees to file a complaint if they think an employer has discriminated against them.
• “This might be more of a surprise than other protected categories,” Amory McAndrew, a partner at Hoguet Newman Regal & Kenney, told Legal Dive. “These categories are not yet in federal law and they’re not in a lot of jurisdictions yet, so it’s really just a matter of communicating this to employers.”
• Although much of the focus is likely to be in an employment context, the protection also applies to treatment of people in public accommodations and housing.

Dive Insight:

There’s no requirement for companies to update their policies, manuals and training to ensure they’re in compliance, but doing so is a good strategy for employers to show they take the effort against bias seriously, said McAndrew. That can help boost their defense in the event a complaint is filed against them. 

“You want to be able to point to your manual or other material to show you’ve given your employees a policy that clearly states you don’t make employment decisions based on height and weight,” she said.

Under New York City law, employees and job candidates already have a private right of action to file a complaint about possible discrimination, either in court or with the city’s human rights commission, which could file a complaint on the person’s behalf.

Unlike some of the other protected categories, like gender and race, there are exceptions with height and weight based on the type of work someone is expected to do, but even with the exceptions, there’s an expectation that employers will try to make an accommodation. 

“If there’s something the employer could easily fix with an adjustment, then the exclusion won’t count,” McAndrew said. “So, if it’s stocking shelves, if they can get you a ladder or a step stool, then stature isn’t necessarily a valid justification.”

For office jobs, though, it’s hard to see how height or weight could factor in, she said. 

When discrimination is suspected, it can be challenging for an employee to bring a complaint successfully. Managers aren’t always direct about why they promote one person over another, or approve or don’t approve an assignment or new job for someone. That puts the burden on the employee to show a manager was thinking they were too small or too large even if they don’t give that as the reason. 

“You have to show something that makes you think there’s a nexus,” she said.  

There are reports showing people link certain characteristics to weight or height, so if a manager cites some of these characteristics, that could be taken as code the manager is acting with bias based on stature, she said. 

“They’re going to be tough causes of action to prove,” she said. 

Even if few cases go to court and fewer win, the law can still have an impact to the extent it reinforces among employers that decisions should be based on business considerations and not something like stature. 

“It’s just reminding people that workplace employment decisions should be based on people’s skills, qualifications and talent and that bias, either implicit or explicit, should be removed from that decision-making,” she said. 

New York City’s law follows San Francisco, which also protects stature, so other jurisdictions could follow suit.

“New York and California seem to be first movers in these types of employment discrimination legislation,” she said.