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New York City Enacts Law Banning Discrimination Based on Weight, Height

By | May 30, 2023

New York City Mayor Eric Adams has signed into law a bill to prohibit discrimination on the basis of a person’s height or weight in employment, housing, and public accommodations, with some exceptions.

The New York City Council passed the bill (Intro. 209-A ) earlier this month. The provision amends Section 8-101 of the city’s Human Rights Law, adding height and weight to the list of characteristics that the city already protects from discrimination including race, religion and sex.

The new measure takes effect November 22, which is 180 days after it was signed into law.

“We all deserve the same access to employment, housing, and public accommodations, regardless of our appearance,” said Adams. “It shouldn’t matter how tall you are or how much you weigh when you’re looking for a job, are out on the town, or trying to rent an apartment. This law will help level the playing field for all New Yorkers, create more inclusive workplaces and living environments, and protect against discrimination.”

This new local law creates an exemption for employers needing to consider height or weight in employment decisions only where required by federal, state, or local laws or regulations or where the Commission on Human Rights permits such considerations because height or weight may prevent a person from performing essential requirements of a job and no alternative is available or this criteria is reasonably necessary for the normal operation of the business.

This new provision similarly permits consideration of height or weight by operators or providers of public accommodations. Covered entities under this law would have an affirmative defense that their actions based on a person’s height or weight were reasonably necessary for normal operations.

Among those testifying in February before the City Council in favor of the measure was Michelle Kraus who works for New York Lawyers for the Public Interest in its Disability Justice Program.

“I am very knowledgeable about people of short stature and their daily discrimination because I am a person with dwarfism,” Kraus told lawmakers. “I have experienced discrimination based on unalterable physical characteristics. People have immediately judged my abilities, competence, and intelligence based on my appearance.”

She testified that “over time, people have been influenced to think people with visible differences are physically and mentally impaired, especially when portrayed in mainstream media as fantastical caricatures or inspirations that deserve the public’s compassion and sympathy. It is easy to ignore individual qualities when impressions are solely based on appearance.”

The nonprofit Little People of America represents people with the genetic change called dwarfism and their families. LPA estimates there are 65,000 people in the U.S. with dwarfism.

Weight Discrimination

Also testifying was Substantia Jones, a fat liberation activist and a member of a demographic that she said endures “many indignities and biases.” She cited in particular “discriminatory barriers to safe and serviceable seating for fat people.”

As an example, Jones pointed to New York City’s own CitiBike program featuring bikes with a weight limit of 260 pounds. “There are people who exceed that weight limit utilizing CitiBikes, many of whom don’t know this weight limit negates their insurance protections. This is wildly unsafe,” she said.

Jones said the city and CitiBike could make certain a portion of the bikes at all stations–or at least certain designated stations–have higher weight limits.

Another advocate for the bill, Stacie Evans, told councilors she has dealt with workplace and healthcare discrimination because of her size.

“The sizeism I’ve experienced on the job has taken many forms, ranging from an employer refusing to purchase an office chair that would fit and support my body to a supervisor who let me know she wouldn’t support my application for a more public-facing role in the organization because seeing me as the face of the org would ‘give the wrong impression.'” Evans said.

Stuart Appelbaum, president, Retail, Wholesale and Department Store Union, said the new law will change workers’ lives for the better. “As a union that represents thousands of workers in the fashion retail industry, we are acutely aware of how size discrimination impacts workers’ job opportunities, as well as their earning potential and career advancement opportunities. Workers come in all shapes and sizes and that is a good thing.”

“Size discrimination is a social justice issue and 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. Worse yet, millions are taught to hate their bodies. As the global beacon of tolerance, it is only right that New York City is leading the national effort to end size discrimination with the signing of this law today,” said New York City Councilmember Shaun Abreu, who sponsored the law.

During the bill signing, NYC Mayor Adams was asked about criticism that the measure isn’t going to protect obesity but could fight against health issues.

Adams said he does not believe the measure is in opposition to health issues. “Everyone knows that I’m a person that believes in health, so when you talk about not discriminating against someone because of their body type, it’s not fighting against obesity, it’s just being fair. I think this is the right thing to do,” Adams said. “We are going to continue to talk about our progressive health agenda and science has shown that body type is not a connection to if you are healthy or unhealthy, and I think that’s a misnomer that we are really dispelling.”

According to the National Institutes of Health (NIH), there are numerous factors that contribute to overweight and obesity conditions including genetics, environment, stress, food intake and activity levels, health conditions and medications.

According to the Centers for Disease Control and Prevention, obesity has continued to rise in the United States, with it now affecting 42.4% of adults and 18.5% of children. In addition, a 2008 study indicated weight/height discrimination in the U.S. has also been steadily increasing and reached 12% in 2004–2006, relatively close to reported rates of race and age discrimination.

Similar Laws

The New York City Commission on Human Rights is charged with the enforcement of the Human Rights Law, and with educating the public. The Commission’s Law Enforcement Bureau is responsible for the intake, investigation, and prosecution of complaints alleging violations of the law. while its Community Relations Bureau provides public education about the Human Rights Law through borough-based community service centers and educational and outreach programs.

In enacting this discrimination law, New York City becomes a member of a small group of other government that have similar protections. The state of Michigan has a law banning discrimination based on weight while several cities have laws against discrimination based on personal appearance or weight and height. These cities include San Francisco and Santa Cruz, California; Washington, D.C.; Madison, Wisconsin; Urbana, Illinois and Binghamton, New York, according to a 2020 report from doctors at Boston’s Harvard Medical School, Massachusetts General Hospital and Beth Israel Deaconess Hospital.

In 2019, the Washington state supreme court ruled that obesity should be considered as covered under the state’s law against discrimination protecting employees with disabilities.

While some state and federal courts in Texas, Louisiana, and Mississippi have recognized weight as a potential disability under federal and state anti-discrimination laws if it is caused by an underlying health condition, the vast majority of federal and state courts still hold that weight is not a disability under the federal Americans with Disability Act or its state-level equivalents, a recent analysis by the law firm Ogletree, Deakins, Nash, Smoak and Stewart.

Topics New York

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