In Harris v City of New York, No. 156195/2024, 2025 N.Y. Slip Op. 25067, 2025 WL 866041 (Sup Ct, Mar. 19, 2025), the court, inter alia, denied defendant’s motion to dismiss plaintiff’s claim of weight discrimination under the New York City Human Rights Law.
In sum, plaintiff – after taking and passing a civil service exam for the position of probation officer – appeared for her medical review, at the conclusion of which was told to “leave and only return after losing 95 [pounds].”
This decision illustrates how courts will evaluate claims asserted under this relatively new law:
On May 26, 2023, the NYCHRL was amended to prohibit discrimination on the basis of height and weight in employment, housing, and places of public accommodations (see Local Law 61 of 2023). The law took effect on November 26, 2023, and is not retroactive.
Under the amended law, it is an unlawful discriminatory practice “for an employer or an employee or agent thereof, because of the actual or perceived … height [or] weight … to refuse to hire or to bar or discharge from employment such person or … to discriminate against such person in compensation or in terms, conditions or privileges of employment” (Administrative Code of City of NY § 8-107[1][a]).There are very limited circumstances under the NYCHRL where an employer may consider an applicant’s or employee’s body size when making employment related decisions (Administrative Code of City of NY § 8-107[1][g][1]). Employers may take height, weight, or body size into consideration when: (1) “it is required by federal, state, or local law or regulation, (2) permitted by regulation adopted by the [New York City Commission on Human Rights] identifying particular jobs […] for which a person’s height or weight could prevent them from performing the essential requisites of the job, and the [New York City Commission on Human Rights] has not found alternative action that could reasonably be taken to allow such person to perform the essential requisites of the job […] or (3) permitted by regulation adopted by the commission identifying particular jobs […] for which consideration of height or weight criteria is reasonably necessary for the execution of the normal operations of such covered entity” (id.).
Given the novelty of the law, the pleading standard for weight discrimination under the NYCHRL presents a matter of first impression. The court is thus instructed by the standard for pleading other protected classes under the NYCHRL. Therefore, to state a cause of action for weight discrimination under the NYCHRL, a plaintiff must plead factual allegations that the plaintiff (1) is a member of a protected class, (2) was qualified to hold the position, (3) was terminated, subjected to another adverse employment action, or was treated differently from other employees, and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 [2004]; Harrington v. City of New York, 157 A.D.3d 582, 584, 70 N.Y.S.3d 177 [1st Dept. 2018]). Under the NYCHRL no action can be “motivated in whole or in part, by [unlawful] discrimination” (see Cadet-Legros, 135 A.D.3d at 202, 21 N.Y.S.3d 221).
In this case, Plaintiff adequately stated a cause of action for unlawful weight discrimination by pleading she is a person of a certain weight (NYSCEF Doc No. 14, proposed amended verified complaint ¶ 6), passed civil service exam number 3037 and was invited to appear for a medical evaluation (id. ¶¶ 13, 17), was told to “leave and only return after losing 95 LBS” (id. ¶ 22) and was not sworn in as a Probation Officer among those that passed civil service exam number 3037 (id. ¶ 46). The allegations that Plaintiff was instructed to “leave and only return after losing 95 LBS,” and that she was given a form recording her current weight with the directive to be reweighed after shedding a specific number of pounds, are sufficient to establish an inference of discrimination. If substantiated, this could serve as direct evidence of weight discrimination (id. ¶¶ 22, 23, 24; see Porter v. Dartmouth-Hitchcock Med. Ctr., 92 F.4th 129, 149 [2d Cir. 2024] [evidence of discrimination is direct when “the employer’s motivation [is] discriminatory on its face”]). To be sure, such reliance on a blanket policy, rather than an individualized assessment of Plaintiff’s ability to perform essential job functions, strongly indicates discrimination based on her weight. Furthermore, Plaintiff’s assertion that the form’s language required her to return only after a specified weight loss highlights the policy’s rigidity and lack of accommodation. Such inflexible standards, as pleaded, are antithetical to the inclusive and protective framework established under the NYCHRL.
The court finished its analysis of this claim by reiterating that “under the NYCHRL an individual’s weight may not be a factor when making employment related decisions unless one of the enumerated exceptions applies” and that ““[s]tereotypes or speculative health and safety concerns regarding body size stem from entrenched bias and do not constitute permissible justifications for height or weight discrimination.”