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Height and Weight to Join the Long List of Protected Classes

Andrew I. Bart in Board Operations on May 18, 2023

New York City

Protected classes, height and weight, co-op and condo boards, discrimination.
May 18, 2023

The New York City Council has passed a bill that makes two additions to the long list of protected classes under the city’s Human Rights Law. If the bill is signed into law by Mayor Eric Adams, as expected, it will be illegal for co-op and condo boards, and other employers and landlords, to discriminate against a job applicant, current employee, apartment buyer or renter based on the person’s height or weight.

If the bill becomes law, New York City will join six other cities and one state that have passed similar legislation. Both New York State and New Jersey have comparable bills pending.

In New York City, a person’s height and weight will join a long list of factors protected against discrimination by the city’s Human Rights Law, including age, race, gender, religion, national origin, disability, sexual orientation, immigration status, arrest or conviction record, and status as a victim of domestic violence, stalking and sex offenses. 

The Human Rights Law applies to employers with four or more employees. 

A New York City co-op or condo board cannot discriminate against a member of any protected class when making an employment decision, including hiring, firing, promotions and demotions. There are specific exemptions and affirmative defenses applicable to the new height and weight categories.

Exemptions. Co-op and condo boards are exempt from the prohibition against discrimination based on height and weight if that preferential treatment is required by federal, state or local laws or regulations. Furthermore, such treatment is permitted by the city’s Commission on Human Rights if one of two conditions is met: a person’s height or weight prevents him or her from performing the essential functions of the job; or the commission has identified a job for which consideration of the job holder’s height and weight is reasonably necessary for the employer’s normal operations. 

Defenses. The bill provides affirmative defenses to an employer facing a potential discrimination charge. One defense would be for an employer to demonstrate that a person’s height or weight prevents the person from performing the essential functions of the job, and there is no alternative action the employer can take that would allow the person to perform the job’s essential functions. An employer can also show that its decision based on weight or height is reasonably necessary for its normal operations.

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As an example, a prestigious co-op board in Manhattan wants to hire a new doorman and likes its employees to project a certain image of fitness. An obese man applies for the job and can perform all the duties involved. The co-op board cannot base its decision to not hire him based on his perceived weight. But if an essential function of the job is to carry a certain weight in packages and the applicant cannot do that, then the co-op board could use that inability as a defense against a discrimination claim.

As another example, a short and thin woman applies to be a building’s superintendent. If she can perform the job’s functions and is otherwise qualified, the condo board cannot decline to hire her based on her weight and height. But if the applicant’s height and weight would prevent her from performing essential duties, the board could claim this shortcoming as a defense.

The law allows employers to offer incentives that support weight management as part of a voluntary wellness program

Apartment sales and rentals. A co-op or condo board cannot discriminate against a potential buyer or renter if the person is in a protected class, which will now include the person’s height and weight. As an example, a prestigious co-op board wants to maintain a certain image. It cannot turn down a potential buyer who otherwise qualifies because her height or weight does not fit the image the co-op board wants to project. Similarly, a condo board cannot discriminate against a potential purchaser based on height or weight when exercising its right of first refusal — the board’s legal right to be first in line to buy an apartment.

Andrew I. Bart is an attorney at the law firm Borah, Goldstein, Altschuler, Nahim & Goidel.

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