New York City Court Dismisses Lawsuit Alleging Height Discrimination, Holding that Adult Height is Not a Protected Genetic Characteristic

An employer did not violate New York state or city human rights laws by firing an employee because of her height, according to a Supreme Court judge in Queens County. The court ruled in Peterson v. City of New York, et al, 2012 N.Y. Slip Op. 51472(U) (Sup. Ct., Queens Co., Aug. 7, 2012), that the plaintiff’s height was not a “genetic characteristic” protected by state law, as she presented no evidence of a genetic condition creating a risk of future illness or disability. It further found that the plaintiff failed to state a claim for relief under New York City’s civil rights law, which does not include protections for genetic conditions.

The plaintiff was employed by the New York City Parks Department from June 2010 until February 2011. Her job involved cleaning bathrooms and taking out trash at the Lost Battalion Hall in Queens. Of the five people employed at Lost Battalion Hall, the plaintiff claimed she was the shortest. Her supervisor allegedly told her that she was “too short” to do her job and that “there was something medically wrong with her.” Slip op. at *1. She alleges that the supervisor required her to see a doctor, and that he was verbally abusive towards her. The plaintiff claims that she rejected a different job offer from the supervisor on February 9, 2011, after which he fired her. She filed suit against the city and the supervisor, alleging violations of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).

The NYSHRL prohibits discrimination in employment based on factors such as race, sex, and religion, as well as “predisposing genetic characteristics.” N.Y. Exec. Law § 296. The NYCHRL does not include this as a prohibited basis for discrimination. N.Y.C. Admin. Code § 8-107. The federal Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff, et seq., also prohibits discrimination based on an employee’s genetic information. Generally, the state and federal statutes define “genetic information” or “characteristics” as information obtained from genetic tests to determine if an individual has a predisposition to a particular disease or disability. Peterson at *3, 42 U.S.C. § 2000ff(4).

The defendants moved to dismiss the lawsuit for failure to state a viable cause of action, arguing that the NYSHRL’s genetic characteristic provisions do not apply to the plaintiff. The plaintiff argued that dwarfism is a genetic characteristic covered by the statute. The court disagreed, finding that dwarfism is not a “disease,” although it can be associated with greater health risks. Peterson at *3. It also noted that the plaintiff did not claim that her short stature resulted from dwarfism. The statute, the court held, applies to genetic information regarding the risk of future illness or disability, which could dissuade an employer from hiring or retaining an employee for fear of future health care costs. The New York State Assembly’s purpose in enacting these protections was, according to the court, to prohibit employers and insurers from requiring “otherwise healthy” people to submit to genetic testing “as a condition for employment or insurance coverage.” Id. In this analysis, the court held, any employee’s height is irrelevant.

If you need to speak to an employment discrimination attorney in New Jersey or New York, contact the Resnick Law Group at 973-781-1204 or (646) 867-7997.

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