A plaintiff tall on creativity, but apparently short of stature, was unsuccessful in a recent New York case in which she claimed she had been discriminated against because of her (unspecified) height.* Both the New York State Human Rights Law** and the New York City Human Rights Law*** prohibit discrimination on the basis of "a predisposing genetic characteristic," and the plaintiff contended that this encompassed her height. The Court rejected the theory, holding that a fully mature adult who has attained his or her maximum growth cannot be "predisposed," genetically or otherwise to becoming that height. The Court also ruled that the key language simply did not apply to a person's stature, noting that the plaintiff did not claim to be a dwarf or "little person."
Whether or not the plaintiff's height was genetic is irrelevant, said the Court. A "predisposing genetic characteristic" under the laws is one, "deduced from genetic tests or personal or family information, whereby it is determined or surmised that one faces an increased hereditary risk of developing a disease or disability in the future." However, the plaintiff did not allege that she was discriminated against due to genetic testing that showed she might develop a disease or disability.
In Peterson, an employee of the Department of Parks claimed her supervisor told her she could not do her job, that she was too short and that there was something medically wrong with her. He also allegedly required her to visit a physician. She also claimed he verbally abused and harassed her, and ultimately fired her.
Although the New York laws considered in Peterson were forerunners to the Genetic Information Nondiscrimination Act,**** the key language in GINA is even less amenable to an interpretation of covering an adult's height, insofar as the term used in GINA - "genetic information" - relates to genetic tests, genetic tests of family members, and the manifestation of a "disease or disorder in family members." The logic of the Peterson decision, however, appears to be equally applicable to GINA.
* Peterson v. City of New York, 2012 N.Y. Slip Op. 51472(U) (Sup. Ct., Queens County Aug. 7, 2012)
** Exec. Law § 290 et seq.
*** New York City Admin. Code § 8-101 et seq.
****42 U.S.C. § 2000ff et seq.