A judge in New York City has just held that an employee who alleged that she was fired for being short did not state a claim under New York state law which protects against genetic discrimination in employment and therefore prohibits employment discrimination on the basis of a “predisposing genetic characteristic.”

The Plaintiff was employed by the city Parks Department with duties which included cleaning the bathrooms and taking out the garbage. She claims that she was the shortest of five employees in her unit, and that a supervisor told her “that she could not do the job, that she was too short and that there was something medically wrong with her, and that he required her to visit a physician, verbally abused and harassed her” and ultimately fired her.

She sued under both the New York State Human Rights Law (Executive Law §290 et seq.), and the New York City Human Rights Law (New York City Administrative Code §8-101 et seq.), claiming that the predisposing genetic characteristic which allegedly constituted the illegal discrimination under these laws was her height. (Note: The city law contains no prohibition relating to “predisposing genetic characteristic.”)

The judge did not state how tall she was (and noted that neither did her complaint), although he noted that her lawyer put before him an article on dwarfism, which the judge deemed as not being established as authoritative, beside being irrelevant.

However, the judge dismissed her complaint.  He held that “the definitions section of the [state] Human Rights Law specifically defines ‘predisposing genetic characteristic’ as a genetic, or inherited, proclivity to developing, or risk of developing, a disease or disability. It has nothing to do with a person's physical height. … Therefore, not only is mere height precluded as a ‘predisposing genetic characteristic’ under a plain reading of the phrase, but the Legislature has defined the phrase as meaning only a genetic predisposition to developing a disease or disability.”   

He went on to state that: “The height of plaintiff is undisputably outside the scope of the plain meaning of the phrase ‘predisposing genetic characteristics’ as a prohibited basis for discrimination in the workplace. Clearly, a fully mature adult such as plaintiff who has attained her maximum growth cannot be ‘predisposed’, genetically or otherwise, to becoming that height. There is no issue in this case of predisposition to anything, whether medical or generally anthropomorphic.”

We must ask why Plaintiff chose one of the more obscure sections of the law to make her claim, and even then failed to plead what her height was, when she might have also made a claim for discrimination on the basis of “perceived disability.” We discussed in yesterday’s blog that under the federal ADA, as an EEOC attorney noted, “Employers must remember that they cannot deny work opportunities to people who are ready and able simply because of inaccurate perceptions about medical impairments and disabilities.”

It would appear that our Plaintiff might have been able to plead that since her supervisor told her that “she was too short and that there was something medically wrong with her, and that he required her to visit a physician,” she might have had a claim that he perceived her as disabled – although being “short” is not itself a disability.