News Alert

A number of states have enacted laws that protect against discrimination based on personal appearance and some have specifically named weight as a statutorily protected category. New Jersey may soon follow suit. S-1631 proposes to amend New Jersey’s Law Against Discrimination to add height and weight as protected characteristics. The Senate passed the bill and the bill has since been referred to the Assembly Judiciary Committee for review.

Recent studies suggest that hiring and raise decisions, career mobility and workplace culture can be shaped by bias against overweight people. Historically, overweight people have had limited protections against workplace bias due to the immutability doctrine, which protects against discrimination based on characteristics that cannot be changed such as race, but typically does not extend to characteristics that can be changed such as weight. Furthermore, some legal scholars have opined that bias against overweight people is rooted in moral blame and a belief that being overweight is a lifestyle choice.

New York City passed a law addressing discrimination based on weight in 2023. Local Law 61 of 2023, known as New York City Human Rights Law (NYCHRL), prohibits discrimination based on an individual’s actual or perceived height and weight in employment, housing, and public accommodations.

We have already seen litigation under NYCHRL take shape in New York. In one of the first cases interpreting NYCHRL, Harris v. the City of New York, the plaintiff alleged she was denied employment as a probation officer solely because of her weight. The claim survived a motion to dismiss. In the Court’s opinion denying the motion, the Court noted that while exceptions exist permitting weight consideration for employment under NYCHRL, the City failed to identify any law or regulation that required or justified a weight requirement. The Court also was unpersuaded that the disqualification of plaintiff based on her weight constituted a medical disqualification, as it did not include any reference to medical conditions or diagnoses preventing plaintiff from completing job requirements of the position.

Proponents of the New Jersey bill assert that it will support New Jersey employees being evaluated based on merit rather than their size. However, some legal scholars are more skeptical of the impact of these protections. Some argue that while overweight people face barriers in the workplace, expanding the categories of protected classes too far may have the inverse effect of weakening protections and may invite backlash from employers who feel that they are being stripped of discretion in employment decisions.

Should the New Jersey bill be signed into law, it will be essential for employers who maintain legitimate physical fitness requirements for employment establish clear protocols and procedures outlining how those requirements serve a legitimate demand of the position. More generally, employers may need to consider retraining and guidance on discrimination procedures.

You can read a complete article about the New Jersey legislation from Law.com here.