Waitresses Can Be Fired For Gaining Weight: The Borgata Babes Case | LabourBlawg

Waitresses Can Be Fired For Gaining Weight: The Borgata Babes Case

by Andrew Miller on August 25, 2013

Imagine this.  Your employer requires you to regularly “weigh-in” to record your how much you weigh compared to your weight at the time you were hired.  At one such weigh-in your employer discovers that you gained a few pounds.  Those few pounds amount to more than 7% of your weight at the time you were hired.  A short time later your employment is terminated.  You may be both shocked and angry.  You may question whether the firing was fair.  It may not be fair, but was it legal?  Surprisingly, in most jurisdictions yes, it is legal.

Recently a New Jersey court examined the issue of weight discrimination in a case that pitted 22 servers known as “Borgata Babes” against their former employer, the Borgata Hotel and Casino in Atlantic City.  The Borgata has a personal appearance policy that required periodic weigh-ins and discipline for Borgata Babes who gained too much weight.  For example, if a server weighed 130 pounds when hired, the server could be disciplined if he or she gained more than 9.1 pounds.

Most of know that it is illegal to discriminate against employees and applicants based on sex, race, national origin, and religion.  The Civil Rights Act of 1964 provides these protections.  Many state laws provide even more protection.  For example, New Jersey also prohibits discrimination based on age, ancestry, sexual orientation, handicap, marital status, AIDS/HIV status, draft status, genetic trait, military status, unemployment status, and presence of an atypical hereditary cellular blood trait.  California protects breastfeeding, and several states protect political beliefs.  However, Michigan is the only state that prohibits discrimination based on weight.  Six U.S. cities also have weight discrimination regulations.

In the Borgata Babes case, New Jersey Superior Court Judge Nelson Johnson focused on the Borgata’s hiring practices, noting that a Borgata Babe was “part beverage server” and “part fashion model.”  The hiring process, referred to as an “audition” rather than an “interview” made it clear that the servers were indeed part of the entertainment for the customers.  Furthermore, each Borgata Babe signed a statement agreeing to the weight policy.  In finding in favor of the Borgata, Judge Nelson also noted that the policy was not discriminatory based on sex.  While it affected more women than men as the Borgata hired substantially more women as Borgata Babes compared to men, the policy applied to both sexes.  Furthermore, the policy also provided for accommodation for Borgata Babes who had medical conditions or returned to work after pregnancy.  Thus, without there being any statutory prohibition against weight discrimination, and without there being any other type of statutorily prohibited discrimination, the New Jersey Court ruled in favor of the Borgata.

If you believe that you have been treated unfairly in your workplace, it is important to discuss the details with an attorney experienced with workplace disputes.  Whether the issue involves discrimination, a workplace accident, or another workplace incident, an attorney familiar with the nuances of the law related to employment will be able to help you choose the best course of action to achieve the best possible result.

Previous post:

Next post: