Twenty-two female plaintiffs lost a lawsuit last month against their former employer, the Borgata Hotel Casino and Spa in Atlantic City. The women, former cocktail waitresses for the facility, disapproved of the Borgata's body weight policy and were hoping the superior court judge who presided over their case would do the same. “Borgata Babes”, according to the thriving Atlantic City casino, are “part fashion model, part beverage server”, and are thus required to maintain the body weight at which they were hired, within a seven percent margin. The plaintiffs took issue with the Borgata's weight standard, each regaling a different tale of harassment and sexual discrimination in her former workplace.
Borgata Babes: Subject to Weigh-Ins
The Borgata calls its servers “babes” for a reason: the women and men who perform serving duties are hired for their attractiveness as well as their hosting abilities. Servers are required to routinely step on a scale as part of their employment; poundage is recorded and monitored by management. Weight gain is a big no-no for Borgata Babes. The rule of thumb is that no server may gain more than seven percent of the body weight at which she or he initially hired.
According to this policy, a 100-pound cocktail waitress could gain up to 6.9 pounds with no fear of recourse from her employer. If she gained seven pounds or more, however, her job would be in jeopardy. A 120-pound waitress could push the scales up to 128.3 pounds without repercussion, but should she reach 128.4 pounds, she'd be in trouble.
Servers at the Borgata who gain more than seven percent of their at-hire body weight are suspended until the offending pounds are shed, according to court documents.
Exceptions to the Rule
The Borgata's seven percent rule allows for some exceptions. A woman returning from maternity leave has six to nine months to get back into shape. Employees with certain qualifying medical conditions are also excused from the body weight standard. Court documents indicate that 48 servers were granted exceptions between 2005 and 2010, all of them women. During this time, the Borgata employed nearly 650 women and 46 men.
Lawsuit: Unrealistic Expectations
The litigious Borgata Babes were clearly not among the 48 exceptions. Court documents claim that some plaintiffs were told to stop taking prescription medications in order to meet the Borgata's weight requirements. Others were told to use laxatives as a means of slimming down.
One plaintiff claimed she was harassed at work for indulging in a cookie. Another said her employer publicly humiliated her about her weight, asking her in front of others if she was pregnant or just getting fat. The plaintiffs claimed sexual harassment and inequality for these reasons, even though male servers are also held to this body weight standard.
Similar Borgata Lawsuits
In 2006, a similar lawsuit surfaced soon after the weight requirement became official policy at the Borgata. Renee Gaud and Trisha Hart sued for $70 million based on harassment they experienced because of the policy. The plaintiffs' attorney, Jeff Carton, called the casino's weight policy “arbitrary”, saying it had “nothing to do with their competence to do their job”. The outcome of the Gaud-Hart case was not publicized; rather, the issue was settled in a confidential manner two years after the initial suit.
James McNally, a New Jersey man who was never actually employed by the Borgata, also sued the company, claiming that the weigh-in requirement discouraged him from applying for a job as a bar tender. McNally wrote in a complaint that the Borgata policy “embarrasses, degrades, and humiliates” him because it suggested he would not perform his job well as a heavier person.
Judge Rules Against Plaintiffs
The twenty-two women lost their court case. Judge Nelson Johnson ruled in favor of the Borgata, saying that the servers understood when they hired in that weight maintenance was a condition of employment. Because the weight clause was part of an agreed-upon contract, the Borgata cannot be sued for it, Johnson explained. In a further statement, the judge agreed that while the term “babe” can be “undignified” and “degrading”, the plaintiffs agreed to maintain their looks as a condition of employment. He further implied that it was the plaintiffs' personal choice to enter into a job that propels the babe “stereotype”.
Michigan Lawyer Richard Bernstein Scoffs at Ruling
Michigan lawyer Richard Bernstein expressed disappointment with Judge Johnson's ruling, saying it sets the stage for employers to take unfair advantage of employees in the future. Michigan is currently the only state in the U.S. that protects employees from weight and height discrimination. Although other types of discrimination are federally prohibited across the country, people in all states but Michigan are sitting ducks when it comes to employer discrimination over weight and height.
The Borgata Defends Itself
Joe Lupo, Vice President of Operations at the Borgata, was happy with the ruling against the plaintiffs. In a statement, he reminded the public that the casino's personal grooming standards are “fully and openly disclosed to all team members”. No one can claim they weren't warned about the weight policy, and every adult hired by the casino understands ahead of time what they're agreeing to.
Determining Who is at Fault
When it comes to weight discrimination in the work place, New Jersey has no law forbidding it. Neither do 48 other states; the only safe haven is Michigan, where laws are in place to prevent weight and height discrimination. Because no laws exist that prevent the Borgata from firing servers based on weight gain, Judge Johnson felt he had no choice but to rule against the plaintiffs.
The question remains, however, as to who is really at fault in this issue. Two possible lines of thinking exist:
- Perhaps the Borgata Babes have no one to blame but themselves. After all, they agreed to the casino's terms of employment.
- Perhaps the law in New Jersey, and 48 other states as well, needs to be changed so lawsuits based on weight discrimination aren't an issue anymore.
At this time, the lack of a national weight discrimination law gives casinos and other employers the upper hand in terms of the body weight of employees.