A woman’s height is not a “predisposing genetic characteristic” protected from job discrimination, a judge has ruled.
“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,” Queens Supreme Court Justice Kevin Kerrigan (See Profile) wrote in Peterson v. City of New York, 10282/12. “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.”
Sandra Peterson’s suit arose from her February 2011 termination from a transitional employment program run through New York City’s Parks Department. As a job training participant stationed at Lost Battalion Hall in Rego Park, Peterson’s duties included cleaning bathrooms and garbage disposal while she received job training and help finding permanent employment.
Peterson claimed Louis Marchi, a workforce development consultant in the program, harassed her by telling her she could not do the job and that she was too short. Marchi allegedly asserted there was something medically wrong with Peterson and allegedly made her see a doctor.
After Peterson’s participation in the program for more than six months, Marchi allegedly fired her when she refused a job offer.
Peterson responded with a lawsuit alleging violations of the State Human Rights Law under Executive Law §296, along with violations of the city’s Human Rights 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 statuses such as age, race and “predisposing genetic characteristics.”
Peterson maintained her height was the genetic characteristic through which she had been illegally discriminated against. As Kerrigan noted in his decision, Peterson did not allege she was a little person, or dwarf, nor did she make mention of her height in her action.
Executive Law §292(21-a) 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 court papers supporting dismissal, the city seized on the definition of the protected genetic status, arguing against Peterson’s attempts “to construe a statutorily defined ‘predisposing genetic characteristic’ as any physical characteristic. This self-serving interpretation of the statute is not grounded in any legal basis and must be disregarded…’Shortness’ itself is not a genetic characteristic that is believed to predispose an individual to a disease or disability.”
In dismissing Peterson’s complain, Kerrigan observed in his Aug. 7 ruling that the state Legislature’s intent behind barring discrimination on such status was to block employers and insurers from genetically screening potential employees or policy-holders before making decisions on coverage or employment.
Peterson contended in court papers that height is a predisposing genetic characteristic by citing a U.S. National Library of Medicine entry on “dwarfism.” Among other things, the entry states that about 70 percent of all dwarfism is caused by a genetic condition called achrondroplasia. “Dwarfism itself is not a disease. However, there is a greater risk of some health problems. With proper medical care, most people with dwarfism have active lives and live as long as other people,” the entry states.
Peterson claimed the entry “raises a prima facie issue as to whether…height is genetic.”
But Kerrigan said that argument is “without merit.” Even if it was demonstrated Peterson was a little person, the judge said the question was still not whether her height was attributable to genes.
Kerrigan reiterated that the protected predisposing genetic characteristics concerned heightened susceptibility to diseases or disabilities. He 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.
Eric Suffin of Manhattan represented Peterson.
Assistant Corporation Counsels Eric Eichenholtz, Bruce Rosenbaum and Megan Burrows Carpenter represented the city.
“We are pleased the court agreed that the Parks Department did not engage in any unlawful discrimination and dismissed the plaintiff’s claims,” said Eichenholtz, a senior counsel in the labor and employment law division.
Carpenter has since left the Law Department.
@|Andrew Keshner can be contacted at firstname.lastname@example.org.