Too Big to Cocktail? Judge Upholds Weight Discrimination in the Workplace

A ruling allowing an Atlantic City casino to fire "Borgata Babes" if they put on pounds could have a plus-size effect

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Mel Evans / AP

The Borgata Hotel Casino & Spa, left, and its sister property, the Water Club, in Atlantic City, N.J., on March 20, 2013

Most forms of workplace discrimination have been barred for years thanks to state and federal protections. But in 49 states around the U.S., there’s still at least one that’s legal: discrimination based on weight.

Last week, Atlantic County Superior Court Judge Nelson Johnson ruled in favor of Atlantic City’s Borgata Hotel Casino & Spa in a rare weight-discrimination case brought by 22 cocktail waitresses known as the “Borgata Babes.”

They argued that the casino viewed them as nothing but sex objects and were forced to endure frequent weigh-ins and were even suspended when they gained excessive weight, which could not be 7% more than their initial weight when they were hired. The court essentially told the cocktail waitresses that they knew what they were getting into by citing the application process for future “babes,” which stated that the positions were “part fashion model, part beverage server, part charming host and hostess. All impossibly lovely.” Judge Johnson also cited the fact that the casino’s “babes” signed statements agreeing to the 7% weight-gain policy.

(MORE: Act Your Age? Not If You Hope to Escape Age Discrimination)

“For the individual labeled a ‘babe’ to become a sex object requires that person’s participation and nothing before the court supports a finding of fraud, duress or coercion in connection with the plaintiffs’ hiring,” the judge wrote. “Plaintiffs cannot shed the label ‘babe’; they embraced it when they went to work for the Borgata.”

The case was part sex-based discrimination (the plaintiffs argued that the Borgata did not apply the same restrictions to their male counterparts) but also part weight discrimination. The judge, however, found nothing in New Jersey’s Law Against Discrimination barring any of the casino’s actions. And in fact, only one state in the country specifically bars discrimination based on height or weight: Michigan.

In 1976, Michigan’s state legislature amended its Elliott-Larsen Civil Rights Act to include height and weight discrimination. The author of the amendment, then state representative Thomas Mathieu, told the Associated Press in 2010 that he introduced the bill because “he was ‘flabbergasted’ by the number of cases of unfairness involving women seeking office jobs who possessed the necessary skills and personality, but were overweight.”

(MORE: Why Being Overweight Could Earn You a Lower Salary)

The law went largely unchallenged for years but was pushed into the spotlight in 2010 when Hooters waitress Cassandra Smith sued her employer on similar grounds as the Borgata case, saying that the chain restaurant known for dressing its servers in tank tops and skimpy bright orange shorts put her on a 30-day weight probation. The case later went into arbitration.

Richard Bernstein, a Michigan-based disability-rights attorney who represented Smith, says the ruling in the Borgata case is troubling and could set a precedent for other employers around the country.

“That’s a horrible ruling,” he says. “You have to look at the far-reaching applications of it. You always have to look at a decision with a broad brush. That decision gives employers a tremendous power over people in the workplace.”

(MORE: Pregnant at Work? Why Your Job Could Be at Risk)

A handful of cities, including Santa Cruz, Calif., Madison, Wisc., and Binghamton, N.Y., have laws in place to protect against discriminatory practices involving weight in the workplace, but there doesn’t appear to be any momentum in other municipalities and states around the country for more protections.

“Weight is the last bastion of discrimination in the workplace that’s still acceptable,” says James J. Parks, a partner at Jaffe Law Firm specializing in harassment and employment issues. “Whether an employer’s policy is nice or nasty doesn’t mean anything. Whether it’s illegal is another issue, and unfair doesn’t always equal illegal.”

MORE: The Vicious Cycle of the Gender Pay Gap

95 comments
mhmilla
mhmilla

I had the same problem finding a job but then I finally got hired at a dog walking company. Not only did they not discriminate based on my looks, I lost 22lbs just walking dogs! I seriously only walked one dog at a time and only had 5 walks a day! You don't want to work somewhere that would pass judgement based on your size, it's really their loss. You need to work somewhere that they appreciate you for who you are. :)

mhmilla
mhmilla

I had the same problem finding a job but then I finally got hired at a dog walking company. Not only did they not discriminate based on my looks, I lost 22lbs just walking dogs! I seriously only walked one dog at a time and only had 5 walks a day! You don't want to work somewhere that would pass judgement based on your size, it's really their loss. You need to work somewhere that they appreciate you for who you are. :)

flip
flip

It appesrs that they signed a model's contract instead of a waitressing contract.  Therein lies the leagal loophole.  As far as height discrimmination I've only heard of a few.  Military, policeman & flight attendants (only because on short hops there is only so much headroom clearance).

alurlyrx
alurlyrx

Looks are important. Who wants to go to a sexy bar that doesn't have sexy waitresses? Is the NFL discriminatory because they only employ the best fit people? Lose weight and stop feeding your face. Fifty years ago this wasn't an issue because most people weren't' fat. 

fogmachine
fogmachine

I want more weight-based discrimination, especially on long-distance plane flights.  Why should I have to suffer because the random person next to me doesn't fit into their seat?  And could they please chew with their mouth closed?

TtestTtst
TtestTtst

I think giving weight discrimination greater national attention than height discrimination is wrong.  Height is mostly determined by what country your relatives are from--and as such, is a form of racism.  Weight--well, it's unfortunate if a person is fat, but, it is determined by diet and is under an individual's control.  If one of these evils should have a higher priority, height discrimination--which has gotten much worse during the last decade--is it.

AlecKohut
AlecKohut

I love all the people that believe just because the women "signed the contract," that the contract is by definition enforceable. If a court finds the contract to be discriminatory, then it is null and void. IT DOESN"T MATTER IF THEY SIGNED IT !!!

Ericthegreat
Ericthegreat

It doesn't matter if it's official or not.  As an overweight attorney, I soon realized in interviewing that I did not fit the "type" that most big law firms want in the way of image.  All the men are tall and slender.  Whether it's official or not, you won't get the job being fat, irrespective of credentials, and you will be fired for some made-up reason if you do gain the weight.  Really, no way around it.

avatar976
avatar976

While discrimination does exist, in this case, all of the employees signed agreements to the 7% condition. They were terminated for violating a contractual term that they agreed to when they were hired.  If they were hired without that condition, or were fired for not accepting the condition after they were already employed, they'd have a case.  It simply isn't discrimination to hold people to contractual terms that they themselves agreed to and consented to.

AdrianSmith
AdrianSmith

@avatar976 

but was it a fair & legal term or should they have taken advice on these cintractual terms??before signing

mrbomb13
mrbomb13

You must be kidding me.  "Weight Discrimination in the Workplace??"

So, I wonder if TIME Magazine would be so inane to label the following as, 'discrimination:'

1) A gym that refuses to hire a "certified personal trainer" who is severely overweight.

2) A modeling agency that refuses to hire models with large waist-lines.

3) (taken from the comments below) A swimming pool that refuses to hire a lifeguard who cannot swim the adequate distance in a given time.

4) A school that refuses to hire a gym teacher who cannot live what he teaches (i.e. PHYSICAL Education).

5) A branch of the military that refuses to train a recruit who cannot walk without huffing and puffing along the way.

Quite frankly, any of the above-individuals would pose a significant liability to the particular firm of which they'd be a part.  Aside from obesity (which, admittedly, is a disease), a person's inability to control his/her weight is a clear demonstration of misplaced priorities.  As the face of any organization, an employee is responsible for maintaining a healthy image. 

Being grossly overweight (combined with poor clothing choices) gives off the wrong impression, and can steer away potential clientele.  If readers don't think those impressions occur in business, they are only fooling themselves.  While never stated to the person, being overweight contributes to impressions of poor self-control, laziness, gluttony (yes, I still hear that term), etc..

JasonDStanfield
JasonDStanfield

@mrbomb13 NO obesity is NOT a disease... YOU CANNOT CATCH IT... it can be called an illness, but not a disease.
GET IT RIGHT.

ShawnLa
ShawnLa

@JasonDStanfield @mrbomb13  

It is a genetic condition that it passed on. There is reason why entire groups of people are heavy. Look at pacific islanders. They have always been big people, and it's not due to diet. It's genes.

Jimmyecon
Jimmyecon

@mrbomb13 Obesity is not a disease.  Some obese people may have a condition that causes it but it is not a disease.  But, when I was growing up, during the 1940s and 1950s, there were few obese people around.  I can remember only one in my home town.  There were people who were heavy but that is different.

Now obese people are common and it has to be something besides diseases or medical conditions.  Something has happened to our population and I believe it is diet and portion sizes that are complimented with less physical activity.

EvenSteven
EvenSteven

@ShawnLa@JasonDStanfield@mrbomb13 "It is a genetic condition that it passed on."

Then why have obsity rates increased so much since 1980 when the human genome has not , nor could not, change one miniscule bit in the same timeframe?  No one is doubting that obesity in influenced by gnetics, but much of those genes, e.g. the FTO gene, is an appetite gene. 

Let's put it this way, suppose that sunbathing all day long and using high-intensity tanning beds became a near-universal social norm and then light-skinned people began whining that photoaging, sunburn and skin cancer were genetic diseases because all of a sudden those conditions escalated in the vulnerable population.


gkfanatic
gkfanatic

@JasonDStanfield @mrbomb13 It is a "disease" spread by contact with fast food wrappers. It has also been found to thrive on couches placed directly in front of television sets. The "cure" is eating sensible food with smaller portions, not being lazy, and getting proper exercise.

Jimmyecon
Jimmyecon

@mrbomb13 This is one time that I do not accept the American Medical Association's decision. 

ShawnLa
ShawnLa

@EvenSteven @ShawnLa @JasonDStanfield @mrbomb13  

Why? Well, due to the fact that the food industry is pumping in a ton of sugar, salt and fat into foods that didn't have them before to make more money.

 That and the fact that the cheapest foods are the ones with the most calories. It's cheaper to eat badly than it is to eat healthily.

mrbomb13
mrbomb13

@Jimmyecon @mrbomb13 

Well, are you a licensed medical professional?  Do you have a scholarly background in medical science? 

Unfortunately, the AMA over-rules you in this arena.

JTDabbagian
JTDabbagian

@mrbomb13 None of your examples reflect actual weight discrimination. In each one, the person is obviously not competent enough to accomplish the job, and they would not get it because of that. Now, here's some better examples of why we need a law that bars weight discrimination: 

1. A paralegal with five years experience in a specific area loses out to a novice legal assistant fresh out of school because the attorney wanted someone thinner. 

2. A PR publicist losing a job opportunity SOLELY because the president of the company "hates fattys." 

3. An engineer, despite being more talented and harder working than anyone else in her company, never sees a promotion; other, thinner (and not always competent) engineers always get it.

4.  A server is fired despite an excellent working record, only to be replaced with someone half his size. 

5. A firm institutes a policy stating that anyone with a BMI over 20 will be terminated/not hired. 

"Aside from obesity (which, admittedly, is a disease), a person's inability to control his/her weight is a clear demonstration of misplaced priorities."

[CITATION NEEDED] 

"While never stated to the person, being overweight contributes to impressions of poor self-control, laziness, gluttony (yes, I still hear that term), etc.."

This is unfortunately true, mainly because people don't bother to judge a book beyond its cover. Seriously, replace "overweight" with almost any other human attribute: Too tall, too skinny, a person of a certain race, etc. Pity we can't judge books beyond their covers. 

JustMeAgain
JustMeAgain

I am a lifeguard.  I train lifeguards.  If someone is overweight and can't rescue someone from the bottom of a pool, then they are not qualified for the job and they will not pass the class.  I've had a 95 pound girl pull a 200 lb man off the bottom of a pool.  I've had overweight people who can't swim the required 300 yards before the class even begins.  So you never know what a person is capable of. 

Obesity is NOT a disease.  Cancer is a disease.  No one forces a person to over eat - it's a choice.  Just like no one forces an alcoholic to keep drinking.  Weight gain is not healthy.  Amusement parks should have weight restrictions just like they have height restrictions.  It's for safety.  That woman in Texas never would have been killed on the roller coaster if the employee had told her she couldn't ride due to safety reasons. 

Lack of self control is a character flaw.  It doesn't matter if it's food, sex, gossip, credit cards, or whatever.  Just look at Anthony Weiner.

CharlesJencks
CharlesJencks

@JustMeAgain Yes, but you're talking about a situation in which the person cannot physically perform the duties of the job. True, it's not a disability, and not something that is outside of the person's abilities to control (for the most part, although there ARE medical conditions that can contribute to someone's weight), but in most jobs - and I would argue, in these womens' jobs - a weight limit is not necessarily a good guidline as to who can physically perform the job and who cannot.

Jimmyecon
Jimmyecon

Fat people lack the discipline to manage their weight and in the process run up medical costs to society.  In this case, their weight is not a medical problem but an aesthetic one but I still have no sympathy.  Getting fat is not in the best interests of any employer.

Control your weight or suffer the consequences.  I'm sick and tired of the fat claiming disability when in fact, they eat too much and exercise too little.

I agree with the court decision.

JTDabbagian
JTDabbagian

@Jimmyecon "Fat people lack the discipline to manage their weight" [CITATION NEEDED] Seriously, in a world with companies deliberately making food addictive, genetics and the fact that unhealthy food is cheaper than healthy food, you should not be saying that. 

jriley
jriley

Well..............almost never are overweight and babe used together.

drdaveh
drdaveh

So, let me see if I've got this right.  Young attractive women are hired for jobs that men or older or unattractive women would not be eligible for in the first place.  These women derive benefit from an accidental set of environmental and genetic attributes not shared by the general population.  Now the argument is that they should keep the job without these attributes?  Well, I guess that puts them in the same position as the rest of us; not qualified.

brentsurf1
brentsurf1

So now let's work on all the fat, old, cranky senior flight attendents.  

Lumpy
Lumpy

They still let Artie Lange perform. I guess baby gorillas are ok.

vancetp84
vancetp84

I wish they would make it harder to survive as a fat, lazy slob. Make them foot their own medical bills, dont give them disability for being fat. I could get fat if i wanted but i CHOOSE not to let myself. Its a choice but unfortunately people now days thinks its ok to be fat and its not. It is disgraceful. I was raised in a family with several family members that are or were excessively over weight and not only affects the fat persons life, it affects everyone around them.  Perfect example, my mother is 5ft. 3in. and easily 350 lbs... and she is also less than 5 years away from being in a wheelchair and medically unable to work... Thats what happens when you take away the stigma of being a fat.

OhMyDog
OhMyDog

If shaming and stigmas actually worked, there would be no children born outside of marriage, no premarital sex, no dating outside one's race, no obesity, no internet trolls and no cheating on tests. Good luck with all that!

iscream2478
iscream2478

@vancetp84 Perhaps they should make it harder to survive if you are tanned, eat salt and high fructose corn syrup, have sex with multiple partners or drive like an idiot.  People think it's OK to do those things too.  All of these things could be considered "disgraceful" and perhaps the people who make these choices should also lose their jobs, pay their own medical bills and be denied  disability.  I suspect if I was your mother I would have addiction issues also.  I suspect you are a tough one to love.

brentsurf1
brentsurf1

@vancetp84 You have exactly the same situation we have in our family. My two sisters are both nurses who work in doctor's offices. They are in their late 50's and both weigh around 250 pounds which is about 100 pounds overweight on any scale you wish to use. They eat constantly all day, but can't understand why they are obese. When I was in college we had a nickname for fat women - "the moomoo crowd" because they all wore the big print, long, drapery type one piece dresses to hide the lard. Weight gain is the result of eating more calories than you burn - put down the fork, try going on a 2,000 calorie daily intake, and go for a walk instead of eating a big lunch.

JasonDStanfield
JasonDStanfield

@iscream2478 stop making excuses for people... we are talking about attractive people employed because they are there to look at, while patrons drink and eat... they werent hired for there ability.
get over it... if you want to look at fat people while you eat and drink then open a Fat people only restaraunt.
simples.

OhMyDog
OhMyDog

I'm OK with that if you include luggage along with the person's weight and make it a combined total. I'll make out like a bandit since I rarely carry more than a small backpack, even for long trips.

However, the fees for football teams will be outrageous, between the big guys and their equipment.

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