“No one should ever be discriminated against based on their height and weight” said Mayor Adams, as he signed a new law prohibiting discrimination based on height or weight in employment, housing, and public accommodations in New York City. New York City has now joined several other U.S. cities including San Francisco and Washington D.C. banning height and weight discrimination. The law will go into effect on November 22, 2023, allowing businesses a period of six months to adapt to the new legislation.
This law is a game changer for servers who apply for jobs and are deemed too fat, too short, or otherwise denied a front of the house position because of their height or weight. Restaurant servers, in particular, will benefit from this new law since appearance-based discrimination is common in the restaurant industry.
Under the new law, a restaurant may not replace to hire an applicant for employment based on an individual’s height or weight, nor can restaurants discriminate against any worker in compensation or in terms, conditions, or privileges of employment because of height or weight.
Employers are only permitted to make decisions based on applicants’ and employees’ height or weight under limited circumstances. These circumstances are when such decision-making is:
1. Required by federal, state, or local laws or regulations.
2. Permitted by regulation adopted by the Commission on Human Rights identifying jobs or categories of jobs for which a person’s height or weight could prevent them from performing the essential duties of the job AND the Commission on Human Rights has not found alternative action that employers could reasonably take to allow individuals who do not meet the height or weight criteria to perform the essential duties of the job or category of jobs.
3. Permitted by regulation adopted by the Commission on Human Rights identifying jobs or categories of jobs for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of the employer.
If a restaurant’s action is not required nor permitted by law or regulation, the restaurant must prove one of the following:
1. A person’s height or weight prevents the person from performing the essential duties of the job, AND there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential duties of the job.
2. The restaurant’s decision based on height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.
These developments have large impacts for both restaurants and restaurant workers, creating a new source of potential lawsuits and legal liabilities. Restaurants must now consider current and future employment practices in the context of height or weight discrimination, and waiters, waitresses, and other restaurant workers may now seek legal action if they feel they have been victim of discrimination because of their own height or weight.
If you have been the victim of discrimination or have questions about your rights as a worker, please contact the attorneys of Pechman Law Group at 212-583-9500.