NYC’s Weight and Height Bias Ban Impacts Holiday Retailers

As retailers serve crowds of holiday shoppers, they should be aware of new prohibitions on weight and height discrimination under the New York City Human Rights Law that took effect Nov. 26.

The New York City Commission on Human Rights, the agency enforcing the human rights law, warns retailers and places of public accommodation in the city that stereotypes or “speculative health and safety concerns regarding body size stem from entrenched bias and do not constitute permissible justifications for height or weight discrimination.”

Although the commission has yet to issue proposed rules for enforcing these new provisions, it recently posted frequently asked questions that should give retailers and other places of accommodation some insight.

Retailers’ Obligations

Patrons and most employees in New York City are now protected from discrimination based on their weight, height, or body size (defined as a combination of weight and height). Retail stores are obligated to prevent such discrimination as places of public accommodation (relating to patrons) and as employers (relating to job applicants and employees).

For businesses with four or more employees, the new law makes it an unlawful discriminatory practice, based on an individual’s actual or perceived weight, height, or body size, to represent that an available position is unavailable, refuse to hire or to continue to employ someone, or otherwise discriminate against them in connection with the terms, conditions, or privileges of employment.

For retail stores or other places of public accommodation, the new law makes it an unlawful discriminatory practice, based on an individual’s actual or perceived weight, height, or body size, to directly or indirectly refuse or deny its services; represent that an available accommodation is unavailable; or declare or post any communication that indicates or suggests refusal or denial of its services.

Businesses that violate these provisions may receive an order to cease and desist from certain conduct, or an order to pay damages to the affected patron, employee, or prospective employee, as well as civil penalties to the city.

Acceptable Circumstances

A blanket ban on weight, height, and body size discrimination raises several questions. Must a retailer accommodate a patron or employee based on their weight, height, or body size? If so, what type of accommodation is acceptable? Can a retailer refuse to hire a job applicant who would not fit in the company’s uniform or be able to reach certain areas in the store with a stepladder?

The law provides limited circumstances in which employers and places of public accommodation may make decisions based on weight, height, or body size, such as when required by federal, state, or local laws. Additionally, as employers, retailers may consider whether weight or height could prevent someone from performing essential functions of a job, and no alternative action by the retailer would allow them to perform those essential functions; or when weight or height criteria is reasonably necessary for the execution of normal business operations.

As places of public accommodation, retailers also may consider weight or height where the city’s human rights commission allows it because such criteria are reasonably necessary for normal business operations and no alternative action by the retailer would allow a patron to use or enjoy the services, space, or goods offered.

The commission defines “alternative action” as a practicable measure that allows an individual to perform essential job functions (in the employment context) or to use or enjoy the services, space, or goods offered (in the public accommodation context), but doesn’t require structural modification, material change to operations, or significant cost.

An alternative action is distinct from a reasonable accommodation (a term retailers may be familiar with as it relates to employees and patrons with disabilities). Unlike a disability, retailers aren’t required to engage in a cooperative dialogue or issue any formal determination if an employee requests an alternative action solely due to height, weight, or body size.

Instead, retailers and other places of public accommodation must assess what practicable adjustments they can make based on the totality of the circumstances. Retailers that require employees to wear a uniform for example, can offer uniforms in additional sizes or permit an employee to wear alternative clothing if a uniform isn’t available in their size.

Retailers and other employers and places of public accommodation should also note that weight, height, or body size sometimes can be caused by medical conditions that might qualify as a disability under federal, state, or local law, or can be related to pregnancy and childbirth. In such circumstances, a retailer may have a separate and distinct duty to engage in cooperative dialogue with someone who requests an accommodation.

Outlook

To abide by these new weight and height related anti-discrimination laws, employers and places of public accommodation should review and update their policies, practices, and training materials.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Keith Markel is a partner and co-chair of the labor and employment department at Morrison Cohen.

Alana Mildner Smolow is an associate in Morrison Cohen’s labor and employment department.

Kayla West is an associate in Morrison Cohen’s labor and employment department.

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