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Borgata Casino's Weight Limit for Servers OK: Judge

By Brett Snider, Esq. | Last updated on

An Atlantic City casino's weight limit policy for cocktail servers is not unlawfully discriminatory, a New Jersey judge has ruled.

The Borgata Hotel Casino & Spa successfully defeated a lawsuit filed by 22 female servers who challenged a policy that prevented the servers (known as "Borgata Babes") from "gaining more than 7 percent of their original body weight," reports Philadelphia's WCAU-TV.

Employers can often require their employees to look or dress a certain way, but is this weight limit a step too far?

The Borgata's Weight Limit

In a decision issued by Judge Nelson Johnson on July 18, the court examined claims by the almost two dozen employees that the policy created a "culture of humiliation and harassment" that constituted sex discrimination, reports The Press of Atlantic City.

The judge disagreed, saying that the "Borgata Babes" weight policy did not rise to the level of gender discrimination, largely because the weight limit was applied to both genders and that servers were aware of it when they were hired.

When sizing up the weight limit, the Borgata equated the 7 percent increase to "one dress size." Judge Nelson affirmed that employers can legally maintain policies that require their employees to appear physically fit and "attractive," reports The Press.

Appearance BFOQs

In many other cases, courts have upheld that businesses that employ "attractive" servers can indeed require physical traits as "bona fide occupational qualifications" (BFOQs), especially if the relevant position is in an industry (like entertainment) in which appearance is placed at a premium.

Even in cases where the business is less entertainment-focused, like with Hooters, managers can require that their servers look a certain way as a BFOQ -- although Hooters later settled one alleged discrimination case for $3.75 million.

For the "Borgata Babes," the casino doesn't claim that it only hires women that appear a certain way; it only requires them to adhere to a certain weight limit based on their hiring weight.

Weight Discrimination?

While race and national origin can't be used to discriminate against an employee under federal law, weight is not included in that protection. Part of the problem for the "Borgata Babes'" suit is that very few jurisdictions recognize weight as a protected category.

In Michigan, Hooters' waitresses were allowed to sue based on weight bias because Michigan civil rights law includes "height and weight" discrimination as prohibited.

But this is not the case in most states, including New Jersey. Without this civil rights protection, employers like the Borgata who want their employees to embody a certain size profile can do so without illegally discriminating.

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