December 11, 2023

It is said that the road to hell is paved with good intentions, but in New York City the infatuation with “disastrous good intentions” is a sacred command.  

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The latest installment of the march down a ruinous path are laws protecting all New Yorkers from discrimination due to their weight or body shape, save where demonstrably necessary. According to the City Council, “Body size discrimination affects millions of people every year, contributing to harmful disparities in medical treatment and outcomes, blocking people from access to opportunities in employment, housing and public accommodations, and deepening existing injustices that people face,” Ignored is the medical evidence on the dangers of obesity and how the CDC classifies 42% of Americans as “obese.”

No worry. According to Mayor Eric Adams, however, “Science has shown that body type is not a connection to if you’re healthy or unhealthy” though the city currently has a diabetes epidemic. The edict’s enactment was hailed by an NYU student who claimed that the school’s desks were too small for her while a Metropolitan Opera singer explained how she developed an eating disorder after being fat shamed.

The city’s latest anti-discrimination decree is only one of a long list of anti-bias missives that adds to bans based upon race, sex, sexual identity, age. religion, and national origins along with veteran or current military status. Then add pregnancy and lactation status, marital status and partner status, prior arrest and conviction record, salary history, and one’s status as victim of sexual abuse or stalking,

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Anti-discriminatory rules are especially numerous in the housing market, so landlords cannot reject prospective tenants due to source of their income, making public assistance and government subsidies equivalent to income from employment. Recent laws have also made it nearly impossible for landlords to evict tenants. Nor can landlords check previous credit histories to screen tenants, so a history of personal bankruptcies is irrelevant. Ditto for the number of children who will live in the residence and if the applicant has a disability, the landlord must pay for a reasonable accommodation.

These anti-discrimination measures are guaranteed to increase the cost of doing business in the city. Now, each edict requires businesses to pay lawyers to revise the company’s anti-discrimination policy. In the case of fatness and body shape, rule-making will be particularly difficult, since the law only bans employers from making decisions on the basis of the “actual or perceived” height or weight of employees and job applicants, To be sure, there may never be a suit by someone claiming they were refused a job for being “too short” but if a suit is filed, the sued firm must respond by demonstrating how company policy explicitly probits this prejudice. And since plaintiffs can use free government legal services or hire a private lawyer on a contingent fee basis, the possibility of discrimination suit bringing a jackpot payout is always possible.

Now, employees will be trained on how to apply nondiscriminatory hiring practices when the “oddly shaped” apply for a position. The Human Resources Department must now ensure that 400-pound job applicants will not be quizzed about their past diabetes or their ability to sit at a normal desk.

Businesses will suffer. With employers prohibited from asking about prior criminal records and troubled credit histories, the odds of employing dishonest workers increases. Hiring extremely short workers might mean having employees unable to perform necessary physical tasks. Appearances also matter. What fashion boutique would voluntarily hire slovenly, overweight salesclerks unable to fit into the store’s fashionable clothing, but this is what the legal department might advise to avoid costly litigation. Particularly in businesses depending on public contact, for example, restaurants, employee appearances can make a major difference, so a tavern that wisely hires only good-looking waitresses risks a suit from an ugly rejected job applicant.

Every additional anti-discrimination rule limits an employer to hire the best possible workers. In the eyes of a jury or judge, a firm with only White male employees is almost automatically guilty of discrimination regardless of objective evidence. Since “everybody knows that diversity is our strength,” it is better to hire a diverse staff regardless of competence. Moreover, objective employment tests to measure job aptitude may be construed as evidence of bias if members of a jury believe that those tests are racially biased.

Faced with constant threats of litigation, employers might reasonably reduce their workforce by automating tasks, outsource hiring to subcontractors beyond the city’s legal jurisdiction, move services online and use AI, or just abandon the city altogether. According to one recent survey, 22% of major New York City employers anticipate moving their headquarters out of the city. What rational business would even contemplate trying to function with all these rules that add zero to the bottom line?