Randy Newman can add the title of this blog post as a new line to Short People, his often misunderstood, misinterpreted hit song from 1977, as a NY court ruled that “shortness” is not a physical disability protected by the NY State Human Rights Law.
NY State’s Human Rights Law can be found in the Executive Law. Executive Law §296 outlaws employers and licensing agencies from refusing to hire, choosing to fire or withholding compensation and benefits from individuals based on various statuses such as age, race and “predisposing genetic characteristics.”
Executive Law §292(21-a) then defines the protected genetic characteristics as genetic inheritances or alterations “believed to predispose an individual or the offspring of that individual to a disease or disability, or to be associated with statistically significant increased risk of development of a physical or mental disease or disability.”
In dismissing the plaintiff’s complaint in Peterson v. City of New York Judge Kerrigan of Queens County Supreme Court ruled that the state Legislature’s intent behind barring discrimination on such a status was to block employers and insurers from genetically screening potential employees or policy-holders before making decisions on coverage or employment. He added that being “short” does not make a person more susceptible to disease or disabilities so that it was not covered under the statute. Peterson had sued claiming her firing from the NYC Parks Department because her employer thought she was too short to do the job was discriminatory. Judge Kerrigan said Peterson never claimed she was fired because genetic testing showed she would develop an affliction in the future; nor did she say she was informed her height could lead to future medical conditions so she was being let go to avoid paying for her health care.
“All plaintiff alleges is that she was discriminated against because she was short,” said Kerrigan.
The case highlights the importance of statutory construction and the need for lay people (and I guess the lawyers that represent them) to understand that NY, like pretty much the rest of the country, is an “at-will employment” State and that absent being in a union or working under a contract, you can be fired for almost any reason; if the reason is not constitutionally protected or specifically delineated in a statute, your only remedy is the unemployment line.