Recruiting, interviewing, and hiring new employees seems to become more complicated every day. Remote work, AI hiring tools, and the sheer number of applicants applying for each open position provide a whole new set of challenges that did not exist 20, or even 10 years ago. Another complication employers must navigate are new employment laws passed by the federal, state, and local government.
There are already laws in place that prohibit employment discrimination on the basis of race, age, religion/belief, gender, sexual orientation, pregnancy, disability, and more. These are protected classes, which means it is against the law for an employer to reject an applicant or discriminate in any way against employees or applicants based on these factors. Now, the EEOC is explicitly stating that those of disproportionate height and weight may receive quasi-protected class status as well, although courts have often found ways to apply protection to these areas using the concept of “plus discrimination.”
Height, Weight & the ADA
The Equal Employment Opportunity Commission’s (EEOC) website contains a statement that says pre-employment inquiries about height and weight are to be avoided by employers because they disproportionately limit employment opportunities of “some protected groups.” Dwarfism is a disability, so not hiring someone with dwarfism because of their short stature could be construed as disability discrimination. Currently, obesity is not considered a disability under the ADA, however if it is the result of an underlying medical condition, it can be.
Many states and cities have laws specifically prohibiting discrimination based on height and weight unless these factors are actual job requirements. New York City is the latest city to ban discrimination based on height and weight. Its law goes into effect on November 23 after a bill was signed by the mayor in May. Other areas that ban discrimination based on height and weight include Washington, D.C., San Francisco and Santa Cruz, California, Binghamton, New York, Urbana, Illinois, Madison, Wisconsin, and the entire state of Michigan.
Exceptions: Essential Requisites of the Job
The New York law does have exceptions in place. Employers are allowed to take height or weight into consideration for employment purposes if they are related to performing the essential functions of the job. Therefore, the height or weight criteria outlined by the employer would have to be necessary for the job for the employer to be granted an exception.
Specifically, the local law would not apply when a person’s height or weight could prevent performing the essential requisites of the job. At this time, the governing body has not outlined any alternatives ways employers can allow persons who do not meet the height or weight criteria to perform the essential requisites of the job.
So, when would a height or weight requirement be legal? Examples include jobs in the acting or modeling industries. It’s not uncommon for acting roles to require someone to be a certain gender, height, or weight based on the type of character they are portraying. Modeling agencies often look for people with certain height and weight characteristics as well.
Height and weight affect job performance in these industries, so asking job applicants about these attributes would not be illegal in these cases. However, including height and weight on a job application for other positions, such as teacher, writer, factory worker, driver, etc., would not be legal because these criteria do not affect job performance.
It’s important to note these laws do not affect employee benefits, such as gym memberships and health and wellness programs. Employers can still offer these incentives without being discriminatory in any way as long as they programs are voluntary.
Contact Our Frisco Employment Law Attorneys Today
To stay on the right side of the law, ensure you are not discriminating against applicants, or current employees, based on their appearance, or any of the other protected classes listed above.
If you need help with any employment or business law matter, the Frisco employment lawyers at Simon | Paschal PLLC can help. To schedule a consultation, call (972) 893-9340 or contact us online.
