By Tracey I. Levy, Levy Employment Law LLC
Lexology, Dec 11, 2023
New York City law now prohibits employers from discriminating against job applicants and employees based on their height and weight. New York City has thereby joined the state of Michigan and about a dozen other localities that similarly ban discrimination based on weight, height or personal appearance. While many of the local laws date back to the 1970s and most were intended indirectly to address other personal characteristics that were not otherwise protected at the time (like sexual orientation), the impetus for the newest such laws, including in New York City, is the prevalence of size discrimination, which particularly impacts individuals of lesser height or greater weight.
Nature of the Problem
In his 2005 book Blink, Malcolm Gladwell reported having researched the average height of CEOs of Fortune 500 companies and found a disproportionate number of them (58%) were over six feet tall. At the time, only 14.5% of men in the U.S. were that tall and the average height for men was 5 foot 9 inches. That research has been frequently cited in the nearly two decades since Gladwell’s study, as reflective of an implicit bias for taller people that pervades hiring and promotion decisions.
With weight, numerous studies have found, and many individuals can provide anecdotal accounts that reflect, that workers who are perceived to be too heavy, especially women, are disadvantaged in the workplace. A 2023 survey by the Society for Human Resource Management reported that 15 percent of U.S. workers say that others at work have made false assumptions about them because of their weight at some point in their career, and one in five U.S. workers reported having witnessed others being mistreated because of weight discrimination. A 2023 survey by Resume Builder reported a more substantial statistic, that 50 percent of the U.S. employees surveyed who identified as overweight said they had experienced weight discrimination in the workplace.
When Height and Weight Can Be Considered
The New York City law, which took effect November 22, 2023, provides for exceptions to the prohibition against considering height or weight as a factor when making hiring, promotion, compensation, scheduling, assignment, termination, or other employment decisions. A person’s height or weight may be taken into consideration if it prevents the individual from performing core job functions and no “alternative action” would allow the individual to perform the job. An “alternative action” is a “practicable measure that allows an individual to perform core job functions.” It should not require a structural modification, material change to operations, or significant cost. Height or weight criteria may also be considered if they are reasonably necessary for the execution of the employer’s normal operations.
When Height and Weight Cannot Be Considered
Where the NYC Commission’s guidance is most helpful is in delineating some of the situations in which an employer cannot use height or weight as a consideration. The Retail, Wholesale and Department Store Union was a force behind the passage of the New York City law, and considerations that are more common in a retail environment therefore permeate the examples provided, which include:
- if alternative seating (as in literally providing a chair or one different from the standard seat) would enable the individual to fulfill core job functions;
- if providing a ladder or stool to allow an individual access to high shelving units would thereby enable an individual to perform core job functions; or
- if the individual would not fit into the uniform sizes the employer has in stock.
When mandating uniforms, employers are required, under the new law, to consider adjusting requirements to allow them to be worn by a wide range of body sizes.
The NYC Commission cautioned that appearance policies that target specific heights, weights or body sizes, whether based on the employer’s preference or designed to meet client preferences, are not permissible. Also, when hiring for certain qualifications, like the ability to lift a certain amount of weight, employers should be careful not to presume that individuals of a certain size are better able to meet those lifting requirements.
Remember the Purpose
People are not always as they appear, or as our express or implicit biases may presume them to be. New York City’s new prohibitions against height and weight discrimination, like the multitude of other characteristics protected under the city law, are meant to give employers pause when making employment decisions. Consider whether you are selecting (or not selecting) the person because of skills, knowledge and experience relevant to the position, or whether you are defaulting to presumptions based on how someone looks. The latter may present a legal concern.
The Value of PATs for Avoiding Body Size Discrimination
Although a WorkSaver physical abilities test (PAT) is not applicable to addressing height and weight discrimination related to biased selections of only tall individuals for executive positions or to whether or not individuals will fit in available sizes of uniforms, the PAT does provide a very valuable tool for objectively selecting and placing employees in physically demanding jobs without unfair height or weight discrimination. As per the above article, a properly designed PAT will assess a person’s abilities, regardless of height or weight, to perform core job functions, also referred to as essential job functions.
WorkSaver conducts job analyses called physical demand validations (PDVs), selects and measures essential job functions and translates the essential job functions into valid and reliable physical ability tests. Regardless of body size, the physical ability tests simply assess a person’s abilities to perform the job safely as required on the work site. If, for example, a large employee cannot climb up a vertical ladder, as required on the job, without exhibiting an unsafe heart rate and/or excessively high blood pressure, the person, despite being large, fails the test. In this example, the PAT did not fail the person because he/she was large, it failed the person because of an abnormal physiological response that poses a direct threat of harm. The same result would apply to a person of any size who provided the same abnormal physiological response to exertion. Another example is if an obese job applicant is unable to fit through a manway opening as required on the job. In these types of cases, a test failure can be looked at by the employer objectively and assess whether a reasonable accommodation can be offered.
For more information on how WorkSaver can validate jobs and create legally compliant physical abilities tests, contact WorkSaver’s office manager, Amy Babin, at amyb@worksaversystems.com or call (985) 853-2214.