Getting Fired for Gaining Weight Allowed Per Court

weightGetting fired for gaining weight is allowed per a court decision this week. An appeals court upheld a New Jersey casino’s practice of regulating the weight of its cocktail waitresses as part of its personal appearance standards policy as lawful on Thursday.

Borgata Hotel Casino & Spa in Atlantic City maintains a rule that limits how much weight its scantily clad cocktail servers can gain (or lose) after employment. Twenty-one cocktail waitresses sued claiming discrimination, and that the policy subjected them to stereotyping and sexual harassment. The New Jersey appeals court, however, upheld Borgata’s personal appearance standards, which apply to both male and female costumed beverage servers known as “Borgata Babes.”

The casino’s standards, which are explained when people are hired, includes the stipulation that servers cannot gain or lose more than 7 percent of their body weight. If their weight does change by more than the 7 percent, they are subject to termination.

For 11 of the plaintiffs, however, the appeals court did send the lawsuit back to a lower court to determine if they were subjected to a hostile work environment because of how they were treated by management over their weight changes. The group included one server who became pregnant and others with documented medical reasons for their physical change.

Noting the victory for Borgata, Joe Corbo, the casino’s vice president and legal counsel, commented that the casino has long maintained that their personal appearance policy “is fair and reasonable. We are pleased that the three appellate court judges agreed with prior rulings that our policy is lawful.” He also pointed out that “all of the litigants voluntarily accepted this policy before they began working for us.”

Employers can require reasonable appearance standards, the female plaintiffs, who dress in corsets, short dresses, high heels and stockings while working for Borgata, alleged that their appearance was scrutinized more closely than male counterparts who did not wear skimpy garb. Over a six-year period ending December 2010, 25 women and no men were disciplined for failure to comply with the weight standard, according to the plaintiffs

The past several years have seen a significant increase in appearance-based discrimination claims addressing dress codes, weight, body art, piercings and grooming.  Most people just assume that appearance-based discrimination in the workplace is not acceptable. However, federal laws (and most state laws) do not prohibit employers from setting rules regarding when an employee is too heavy, reveals unconventional body art, has facial piercings, or is generally unattractive when it pertains to their business.

Federal and state laws do prohibit discrimination on the basis of race, sex, age, religion, ethnicity and disability. But, dress and grooming requirements enforced across the board and no discriminatorily are usually allowed. For instance, courts allowed Fort Worth to require a policeman to cover his tattoos on duty since they detracted from the professional image they wanted. Costco has a no-facial jewelry except earrings policy. An employee who got facial piercings after being hired was warned, then terminated and sued. The court reasoned that Costco had a legitimate interest in presenting a reasonably professional appearance to customers and it was their discretion to prohibit facial piercings on people who deal with customers.

In Borgata’s case, their recruiting brochure reportedly describes a “Borgata Babe” as “part fashion model, part beverage server, part charming host and hostess.” There are approximately 200 people employed Borgata Babes.

The women in the Borgata lawsuit tried to maintain that the weight requirement, costumes and such sexualized the workplace for the women. Duh. Needless to say, there have been some lawsuits against Hooters for similar things too, but it strains credulity that someone applying for a job that requires skimpy, sex attire is surprised their workplace is sexualized. However, if all are treated the same, it is not discrimination and, per the NJ court ruling, getting fired for gaining weight in those types of jobs is allowed, if handled correctly.

Written and edited by Dyanne Weiss

Atlantic Appeals judges uphold Borgata weight rules in ‘babes’ suit
Christian Science Monitor: Fired for gaining weight? New Jersey court upholds casino policy
National Law Review: Regulating Appearance In The Workplace: An Employer’s Guide To Avoid Employment Discrimination Lawsuits
ABC News: Borgata Casino Can Dictate Servers’ Weight and Appearance, Court Rules
Salt Lake Tribune: Casino’s ‘Borgata Babes’ weight restrictions upheld
CBS Baltimore: Former Hooters Waitress Claims She Was Target Of Racial Discrimination Over Hair

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