New York City has introduced a prohibition against discrimination based on height and weight, affecting retailers throughout the holiday season. Taking effect from November 26th, the New York City Human Rights Law is a significant development for places of public accommodation and retail businesses, which are now put on notice that entrenched biases or “speculative health and safety concerns” regarding body size will not be permissible grounds for discrimination based on height or weight.
Enforcing this law is the task of the New York City Commission on Human Rights, which has yet to propose specific rules for these new provisions. Nevertheless, it has recently posted a series of frequently asked questions that should offer useful insights to retailers and other places of public accommodation.
Not just clients, but most employees in New York City are now safeguarded from discrimination based on their weight, height, or body size. Retail stores need to prevent such discrimination in their roles as public accommodations and employers. The new law prohibits businesses with four or more employees from refusing to hire or to continue to employ someone, or otherwise discriminate against them in connection with the terms, conditions, or privileges of employment, based on an individual’s actual or perceived weight, height, or body size.
For retail stores and other public accommodations, it’s now deemed unlawful to directly or indirectly refuse or deny its services; suggest that available accommodations are unavailable; or post any communication that indicates refusal or denial of its services based on an individual’s actual or perceived weight, height, or body size. Any infringement of the law could result in orders to cease and desist from certain conduct or to pay damages to the affected individual and civil penalties to the city.
Despite these prohibitions, the law provides some narrow circumstances where decisions based on weight, height, or body size may be legitimate, such as compliance with federal, state, or local laws. Weight or height can also be a relevant consideration if it impedes somebody from performing essential job functions and no alternative action by the employer would allow them to carry out those functions. Similarly, public accommodations like retail shops can consider weight or height in cases where such criteria are reasonably necessary for normal business operations and no alternative action would enable a patron to use the services, space, or goods they offer.
This differentiation between ‘alternative action’ and ‘reasonable accommodation’ (as it relates to employees and patrons with disabilities) is crucial. Unlike with disabilities, retailers are not required to engage in a cooperative dialogue or issue any formal determination if an employee requests an alternative action due solely to height, weight, or body size. In other words, employers and public accommodations have to assess practicable adjustments on a case-by-case basis.
Retailers, like other employers and public accommodations, need to note that factors like weight, height, or body size can sometimes be linked to medical conditions qualifying as a disability under federal, state, or local law or can relate to pregnancy and childbirth. In such circumstances, retailers have a distinct duty to engage in cooperative dialogue with someone who requires an accommodation.
In light of these new laws prohibiting discrimination based on weight and height, it’s imperative for all employers and public accommodations to review and update their policies, practices, and training materials appropriately.