Many stand-ins work on TV and film productions in New York City. Probably most of these stand-ins find that their height is a characteristic used in hiring. Some of these stand-ins may even find their weight playing a factor in hiring. If they don’t have the “right” height or weight, they may lose out on the stand-in work.

Considering height or weight in hiring stand-ins may change soon in the city, as New York City lawmakers recently passed a bill to prohibit discrimination in employment based on someone’s height or weight. As of the date of this Stand-In Central article’s publication, the bill is before New York City Mayor Eric Adams, and according to reporting, the mayor is expected to sign the bill into law.

The obvious question will be whether casting directors will be able to use height and/or weight characteristics in hiring NYC TV/film stand-ins. In this article, we analyze what we can of the bill and its reporting to see whether TV/film productions in New York City and their casting directors will need to change their approaches to hiring stand-ins –leaving out height and weight considerations in their job posts and hiring considerations.

First, A Disclaimer

Stand-In Central is not an authority on the bill or the law in this topic, nor is the author of this post a lawyer. Nothing in this article should be construed as legal advice.

What Does the Bill Say?

The bill in question is known as “Introduction 0209-2022.” The legislative history and the text for this bill can be found here on the NYC City Council website.

The bill’s title is:

A Local Law to amend the administrative code of the city of New York, in relation to prohibiting discrimination on the basis of a person’s height or weight in employment, housing, and public accommodations

Summarizing the bill, the City Council’s website says:

This bill would prohibit discrimination on the basis of a person’s height or weight in employment, housing, and public accommodations. This bill would also create an exemption for employers needing to consider height or weight in employment decisions only where required by federal, state, or local laws or regulations or where the Commission on Human Rights permits such considerations because height or weight may prevent a person from performing essential requirements of a job and no alternative is available or this criteria is reasonably necessary for the normal operation of the business. This bill would similarly permit consideration of height or weight by operators or providers of public accommodations. Covered entities under this law would have an affirmative defense that their actions based on a person’s height or weight were reasonably necessary for normal operations.

Obviously, the parts of the bill of interest to NYC TV/film stand-ins pertain to job discrimination based on height and weight, as well as the exemptions employers might have in order to legally permit them to consider height and weight in employment decisions.

In order to understand more clearly the proposed exemptions, one has to dig a bit into the text of the bill.  The bill, if signed, would modify Section 8-107 of the NYC administrative code, which outlines what conduct constitutes an “unlawful discriminatory practice.” Basically, height and weight would become protected characteristics in hiring.

The proposed law would make an unlawful discriminatory practice for an employer or an employee of one, or the employer’s agent, “To discriminate against [a] person [based on height or weight,] in compensation or in terms, conditions or privileges of employment.” The proposed law appears to extend to employment agencies, which some background casting offices that hire stand-ins might constitute if they don’t already constitute agents of the employer.

As for exemptions, the proposed law has these that might be of interest to NYC TV/film stand-ins:

  • when height or weight considerations are required by federal, state, or local law or regulation
  • when height or weight considerations are permitted by regulation adopted by the Commission on Human Rights identifying particular jobs/job categories:
    • for which a person’s height or weight could prevent performing the essential requisites of the job, and
    • for which the Commission “has not found alternative action that covered entities could reasonably take to allow persons who do not meet the height or weight criteria to perform the essential requisites of the job/job category
  • when height or weight considerations are permitted by regulation adopted by the Commission identifying particular jobs/job categories:
    • for which consideration of height/weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.

Employers and other “covered entities” will be able to affirmatively defend their arguably discriminatory hiring conduct for height or weight reasons by arguing either:

  • a person’s height/weight prevents the person from performing the essential requisites of the job, and there is no alternative action the covered entity could reasonably take that would allow the person to perform the essential requisites of the job, or
  • the covered entity’s decision based on height/weight criteria is reasonably necessary for the execution of the normal operations of such covered entity.

If the bill becomes law, it would take effect 180 days after it becomes law.

Analysis

Evidently, the practice of hiring of NYC stand-ins based on height and weight considerations may come under legal scrutiny if this bill becomes law.

On its face, the practice would become an “unlawful discriminatory practice” in New York City, unless a TV/film production, its background casting office, or any of their respective employees is able to serve an affirmative defense for the use of height/weight considerations in employment — or otherwise is able to successfully argue its conduct in considering height/weight in employing stand-ins was exempt.

Regulations around Stand-Ins’ Heights/Weights?

When it comes to hiring stand-ins, there probably is no “federal, state, or local law or regulation” requiring height or weight consideration in their employment — so it is unlikely any employer or other covered entity could realistically plead that, say, an outstanding law requires them to hire stand-ins based on height/weight.

When it comes to NYC’s Commission on Human Rights, it must issue regulations in order to permit considerations of height/weight in hiring stand-ins. Stand-In Central simply assumes here that, to date, no such regulations exist from the Commission around a particular stand-in job or the job category of stand-in, considering that the bill is not a law yet.

If the Commission were to adopt regulations around hiring stand-ins’ based on height/weight, those regulations can be of two breeds:

  • permitting height/weight considerations when “reasonably necessary” for executing the stand-in job
  • permitting height/weight considerations when “essential” for doing the stand-in job and there are no alternative actions the employer can take (considering the person’s height/weight) in order to execute the stand-in job

Is Stand-In Height/Weight Important for the Job?

Basically, if this bill becomes law, height/weight considerations for stand-ins comes may come down to how necessary or essential those characteristics are to execute the stand-in job.

Keep in mind that stand-in work is not a job involving the operation of heavy machinery or otherwise a ton of responsibility.

It would be unrealistic to categorically state that for all stand-in work, height/weight considerations are reasonably necessary, and it would be a lie to categorically state that for all stand-in work, height/weight considerations are essential.

Considerations of height/weight around stand-in work comes down to individual stand-in jobs and the specific facts of the specific job whether the height/weight of stand-ins is anywhere inside the range of “reasonably necessary” to “essential.”

There are plenty of work days when the height/weight of the stand-in is effectively irrelevant — someone just needs to stand on a mark. This happens frequently on set, especially when background actors are “pulled” in order to stand in.

But there are jobs when a production may require for precise photographic reasons that stand-ins’ match, say, the height and weight of their principal actors. On those specific jobs, then height/weight considerations of stand-ins may be “reasonably necessary” or perhaps “essential,” and so height/weight considerations may be permissibly exempt.

However, just because these specific stand-in jobs find height/weight of stand-ins critical, not all stand-in jobs as an entire job category hold the same importance around stand-ins’ height/weight.

Alternative Actions in the Face of Dissonant Height/Weight Characteristics

To come to a regulation around stand-ins and permissible height/weight considerations in hiring them in NYC, the Commission must determine that height/weight of a person for a single stand-in job or the job category of “TV/film stand-in” must be considered for performing the essential requisites of the job.

But the Commission must also not have found employers could take an “alternative action” they “could reasonably take to allow persons who do not meet the height or weight criteria” to perform the essential requisites of the job/job category. In that event, NYC productions hiring stand-ins may find their considering height/weight is categorically exempt and thereby permitted. If not categorically so, each particular TV/film stand-in job may need to be evaluated by NYC’s Commission on Human Rights and regulations around it the Commission may need to adopt for NYC productions to consider stand-ins’ height/weight characteristics.

Stand-In Central’s Position

Stand-In Central’s position about TV/film stand-in work is that the NYC Commission on Human Rights should not find that height/weight is categorically an essential requisite for the job.

For example, many TV/film productions use utility stand-ins. These stand-ins may stand in for a number of different actors of varying heights/weights over the course of production, making the consideration of these utility stand-ins’ heights/weights not required to perform the essential requisites of the job, and their heights/weights effectively meaningless or not reasonably necessary.

At that, in the event a production needs someone to stand in but finds someone is dissimilar in height/weight from a principal actor, many times reasonable alternatives can be applied to the person.

For example, in the event a stand-in is shorter than an actor, the stand-in can wear heels, wear lifts inserted into the shoe, or stand on an applebox. In the event a stand-in is taller than an actor, the stand-in can spread his/her legs to achieve a lower height, sit, or otherwise lower his/her height. Of course, there can be extreme differences in height between stand-in and actor, but whether those differences spell that the stand-in cannot do the job turns on the facts of the specific stand-in job — these work days do not spell a categorical requirement that for all stand-in jobs, height may be considered.

As for weight, there may be similar modifications, such as the wearing of tighter or looser clothing, lighter or heavier closing, etc. Again, there may be extreme differences in weight between a stand-in and an actor, but those are specific to those stand-in jobs — those work days are not a blanket reason that weight should be a categorically permitted characteristic in hiring NYC TV/film stand-ins.

What Will Likely Happen

If Mayor Adams signs the bill into law in May 2023, it may go into effect in New York City as soon as November 2023.

Stand-In Central anticipates TV/film productions and their casting offices will continue to ask people their heights and possibly their weights in consideration for stand-in work. They will likely reason that height/weight considerations are “reasonably necessary” for executing the job.

Stand-In Central disagrees with that position, and stand-ins may be faced with proving on a job that height/weight considerations were not necessary or reasonably necessary for executing the job.

Developing evidence for such a case may involve photographing stand-ins whose heights/weights were dissimilar to the height/weight of their principal actors, or otherwise collecting height/weight information about stand-ins compared to their principal actors on a job. Other evidence could include interviews with DPs or ADs who express they do not care about the height/weight of stand-ins on this job.

Effectively, stand-ins may be faced with proving the lack of necessity in considering stand-ins’ heights/weights on their jobs, and the production’s so considering stand-ins’ heights/weights in employment constitutes an unlawful discriminatory practice in NYC.

Stay tuned to see if the bill becomes a law!

What do you think of the proposed law as it may apply to NYC TV/film stand-ins? Post your thoughts in the comments below!