New York City Joins Growing Effort to Ban Body Size Discrimination

On May 26, New York City Mayor Eric Adams signed into law a bill banning body size discrimination in the workplace. This new law, which goes into effect Nov. 22, adds weight and height as protected classes under the city’s Human Rights Law. This law is part of a growing national movement to curtail body size discrimination at work.

But the law does have its limits: it will not apply in situations where an employee’s weight or height prevents him or her from performing essential functions of the job or consideration of the employee’s weight or height is reasonably necessary to the normal operation of the business.

Historically, body size has not been recognized as a protected class under most federal and state discrimination laws. Accordingly, without a direct path to assert body size claims, employees argued their body size (for example, being obese) was a qualified disability protected from discrimination under the Americans with Disabilities Act. 

However, this theory was never uniformly accepted, as many courts treated obesity as a disability only if it was a symptom of some other underlying medical condition, such as hypertension or a thyroid disorder. For instance, in a 2016 case, the Eighth Circuit Court of Appeals ruled that the ADA does not provide a cause of action for obese applicants who are denied safety-sensitive jobs because obesity by itself is not a disability, as defined under the ADA. When the Eighth Circuit’s decision was appealed to the United States Supreme Court, the high court declined to hear the appeal and left the Eighth Circuit’s reasoning undisturbed.

The courts’ treatment of body size claims under the ADA has not sit well with some states and cities, and, as a result, these places have paved new avenues for employees to seek recourse for body size discrimination. 

Like New York City, Michigan, Washington state and Washington D.C. now ban some form of body size discrimination, and lawmakers in New York state, New Jersey, Massachusetts, and Vermont are now considering whether to expand their discrimination laws to add body size as a protected class. And while Texas does not have a body size law, an appeal recently filed with the Texas Supreme Court asks the court to broaden Texas law to prohibit obesity discrimination..

Florida currently does not ban body size discrimination at work. But like New York City, Florida has been swept up in a growing trend to expand anti-discrimination laws to cover non-traditional classes. For example, a group of Florida lawmakers have introduced a bill banning hairstyle discrimination (similar to the hairstyle law recently enacted in Texas) to prevent employers from using hairstyles as a proxy to discriminate against persons of a certain race or ethnicity. Although the bill has not received enough support to become law, its proposal reflects a national push to expand the scope of anti-discrimination laws.

Given these developments, employers should review and update their anti-discrimination and hiring policies to ensure compliance with applicable body size laws or any other laws that have expanded discrimination laws to less-traditional classifications.

For questions or guidance regarding this, please reach out to Matt Perez or any member of the Phelps Labor and Employment team.