Employment Law Update: Two New Protected Classes in New York City


On November 22, 2023, New York City will add height and weight to its list of protected classes.

The law creates exemptions for employers when:

  • the employer needs to consider height or weight in employment decisions because it is required by federal. state, or local laws or regulations; or
  • when the Commission on Human Rights permits such considerations because height or weight may prevent a person from performing the essential functions of a job and no alternative is available, or the criteria is reasonably necessary for normal business operations; or
  • when the Commission on Human Rights identifies particular categories of jobs for which height or weight criteria are reasonably necessary for the business’s normal operations.

Employers will have affirmative defenses if:

  • an individual cannot perform the essential functions of the job due to the individual’s height or weight, and the employer cannot reasonably take an alternative action that would allow the individual to perform the essential functions of the job; or
  • the employer’s decision, based on height or weight, is reasonably necessary for the business’s normal operations.

Please note an employer can offer incentives that support weight management as part of a voluntary wellness program.

In June 2022, a similar law was proposed in the New Jersey Senate. The law would prohibit discrimination based on height and weight; however, employers could consider height and or weight in instances where “the height or weight of an individual is a bona fide occupational qualification.”

Takeaway: If you are an employer with questions regarding protected classes, please contact Tracy Armstrong or another member of the Wilentz Employment Law Team.


The postings on this blog were created for general informational purposes only and do not constitute legal advice or a solicitation to provide legal services.  Although we attempt to ensure that the postings are complete, accurate, and current as of the time of publication, we assume no responsibility for their completeness, accuracy, or timeliness.  The information in this blog is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  Readers should not act upon this information without seeking professional legal counsel.

This blog may contain links to independent third party websites and services, including social media. We provide these links for your convenience, and you access them at your own risk.  We have no control over and do not monitor the content or policies (including privacy policies) of these third-party websites and have no responsibility for, and no liability with respect to, their content, accuracy, or reliability.  Unless expressly stated, we do not endorse any of the linked websites or any product, service, or publication referenced herein or therein.  We will remove a link to any site from this blog upon request of the linked entity.

We grant permission to readers to link to this blog so long as this blog is not misrepresented. This site is not sponsored or associated with any other site unless so identified.

If you wish for Wilentz, Goldman & Spitzer, P.A., to consider representing you, please obtain contact information from the Contact Us area of this blog or go to the firm’s website at www.wilentz.com.  One of our lawyers will be happy to discuss the possibility of representation with you. However, the authors of Wilentz blogs are licensed only in New Jersey and/or New York and do not wish to represent anyone who viewed this site in a state where the site fails to comply with all laws and ethical rules of that state.

Thank you for your interest in Wilentz, Goldman & Spitzer P.A.’s legal blogs. You will receive an email sent to the address entered in order to confirm your subscription. Please watch for it and click the link to confirm your subscription.