Policies and training will be crucial for employers subject to New York City’s new ban on weight and height discrimination in the workplace, according to Andy Spital, chair of employment litigation and counseling practice in Willkie Farr and Gallagher’s New York City office.
The city last month joined a handful of other jurisdictions — including Urbana, Illinois; Madison, Wisconsin; Binghamton, New York; San Francisco; Santa Cruz, California; Michigan; Washington state and Washington, D.C. — in outlawing weight and height bias. And while the law doesn’t take effect until late November, there are several steps HR may want to take now, he said.
Talk to workers now
Employers should loop employees in early, Spital recommended. If such a policy doesn’t already exist, compliance pros should update workplace handbooks to clarify that harassment and discrimination based on weight and height are prohibited, Spital said. This applies both to employment decisions from leaders, who should not factor such elements into their hiring decisions, and to negative or insensitive comments between co-workers, which could lead to employer liability.
For many employers, such discrimination or bullying is already considered intolerable, so the law may not have a major practical impact, Spital said. But codifying the policy in writing and reminding workers of the potential consequences are good compliance practices regardless.
Consider industry-specific implications
During a hearing on the bill, Spital said, the council heard testimony about specific industries with alleged pervasive appearance discrimination — namely, retail, the performing arts and fashion. “I think employers in those industries should look at this law with a heightened sense of urgency and prepare themselves to have their hiring practices and their cultures more broadly scrutinized,” Spital said.
Importantly, the bill provides for exemptions “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.”
The details of those exemptions remain to be seen; Spital noted that the law doesn’t even impose a deadline on the New York City Commission on Human Rights by which it would need to publish regulations. But while specific jobs will likely be included on the list, “I do not anticipate that this city is going to issue regulations that wholesale exempt certain industries,” Spital said. The exemptions “really are job- or category-of-job-specific.”
“If you’re an employer that has height or weight requirements, either expressly or implicitly, then you’ll obviously want to consult with legal counsel,” Spital said.
Adopt a companywide policy
Spital also recommended employers apply New York City’s law broadly.
Traditionally, New York City law has been interpreted by the courts to apply only to those who experienced the alleged discrimination within the city, Spital said — meaning it would not apply to remote employees working outside the city, even if the employer is based there. Regardless, Spital said, “I would advise just taking steps to comply with this law regardless of where your employees are actually based.”
Such steps keep compliance pros from having to track where employees are living at any given time, and they also ease the company’s ability to enforce policy. New York City’s ban is likely to influence legislation in other cities and states as well: New York, New Jersey, Massachusetts and Vermont are considering bans of their own.
With the list of job-based exemptions still up in the air, employers — especially those in more physical industries — may feel unsure how to proceed, and many questions still hang in the balance, Spital acknowledged. But businesses, regardless of location, can take these steps to prepare themselves now.
“I do think employers should expect to see more of this type of legislation down the road,” Spital said.
