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“Appearance discrimination” based on employees’ height and weight is the latest hot-button issue in employment law. Here’s a guide to avoid discrimination.

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AG

Avrohom Gefen

March 24, 2024 11:00 PM

This article was originally published on 8/31/2023.

EMPLOYMENT DISCRIMINATION in the United States is squarely prohibited by a host of federal laws: Title VII of the Civil Rights Act, the Americans with Disabilities Act and the Age Discrimination in Employment Act.

More protections have since been added, including amendments to those laws and broader interpretations of terms such as sex and disability, but these have largely been expansions of existing categories. Today, several new and pending state and local laws are adding new antidiscrimination protections based on personal appearance.

New York City, often a leader in matters like these, recently enacted a law, effective this November 22, prohibiting employment discrimination on the basis of a person’s height and weight. Employers can consider an employee or applicant’s height or weight to make staffing decisions only if it’s required by a law or regulation; for specific jobs in which such attributes might prevent the employee from performing essential duties and no other alternative is available; or in specific lines of work in which criteria governing height or weight are reasonably necessary for normal business operations. (A clear example of this would be a maintenance worker who must climb a ladder but is too heavy to do so. Less clear: a clothing store salesperson who can’t fit into the mandatory company-provided apparel.)

Other jurisdictions—in states including New York, New Jersey, Massachusetts, Wisconsin, Michigan, Illinois, Florida and California—have enacted, or are pursuing, laws that add height and weight to employment discrimination categories, some of which include protections in housing and places of public accommodation such as airlines, hotels and restaurants.

Given that research has shown that the overweight is paid less than their thinner colleagues, these laws potentially invite claims of pay or promotion discrimination. This presents a unique problem for employers in places where such laws apply, because presumably businesses don’t track their workers’ height and weight to determine if discrimination, even subconscious bias, is occurring.

Except in Michigan, where weight discrimination is banned by state law, only a handful of locales around the U.S., mostly cities, prohibit the practice."

In addition, existing, new or proposed laws in New York, Florida and Texas prohibit hairstyle discrimination based on a coif’s texture, style and length, or the use of head coverings commonly associated with a particular race or religion. Given how varied all these factors can be, it’s critical for a business in these jurisdictions to know the exact language of such statutes.

These laws are not yet widespread. Except in Michigan, where weight discrimination is banned by state law, only a handful of locales around the U.S., mostly cities, prohibit the practice. (To put this in perspective, more than half of the states have laws protecting smokers’ right to smoke on their free time.) But it’s likely just a matter of time before other places follow suit.

To ensure that a company complies with appearance discrimination laws in any jurisdiction in which it operates—and to anticipate similar forthcoming laws and establish policies to address them—counsel should look into updating employee handbooks, the business’s antidiscrimination and antiharassment policies and employment and service agreements.

If a company has positions with height and/or weight requirements, counsel should advise the relevant decision makers to reevaluate the business need for them to determine if there is a reasonable alternative that would allow the individual to perform the job despite not being able to meet the requirements. When it comes to the increasingly prevalent efforts to prohibit appearance discrimination, and businesses’ need to comply, an ounce of prevention is worth a pound of cure.

Avrohom Gefen is a partner at Vishnick McGovern Milizio LLP, where he heads the Commercial Litigation and Employment Law practices and is a key member of the Alternative Dispute Resolution Practice. He can be reached at agefen@vmmlegal.com and 212.759.3500 x119.

Headline Image: Unsplash/Ross Stone

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