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.
“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.”
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.”
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.”