By Eric B. Meyer
Sex sells. So, when 22 female cocktail servers at an Atlantic City casino pursued claims of discrimination based on their appearance, it came as little shock to me that the judge wasn’t buying.
Last month, a New Jersey state court dismissed a lawsuit against the Borgata Hotel Casino & Spa, brought by cocktail waitresses known as the “Borgata Babes,” who claimed that they were victims of gender and weight discrimination.
Jennifer Bogdan, writing in the Press of Atlantic City, notes that, upon hire, Borgata told its servers that they must appear “physically fit” with their weight proportionate to their height and, ultimately, banned the servers from gaining more than 7 percent of their body weight. Supposedly, the women were subject to periodic weight checks and suspension for failing to meet the weight requirements, with exceptions made for medical conditions and pregnancy.
Women “embraced” the Borgata Babe program
Ms. Bogdan reports that the judge held out little sympathy for the 22 “Borgata Babes,” who knew what they signed up for:
Johnson focused on the hiring process the women endured, which he said made it clear the positions were meant to be part entertainer and part cocktail server. All of the women involved in the case later signed statements agreeing to the weight policy, which the judge described as lawful and reasonable.” …
The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation. Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata.”
No law about discriminating due to weight
Without having seen a copy of the judge’s 24-page summary judgment opinion, I’m reluctant to offer any sort of in-depth analysis. But I’ll note that while some jurisdiction may recognize weight discrimination as a standalone cause of action, nothing under federal law (or New Jersey state law) expressly prohibits an employer from discriminating against employees based on weight.
So, as noted above, the ultimate result here is no shock to me.
UPDATE: Thank you to my colleague, Jennifer Snyder, who provided me with a copy of the summary judgment opinion. As a “did you know,” Jennifer informs me that Judge Nelson Johnson also wrote Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City.
This was originally published on Eric B. Meyer’s blog, The Employer Handbook.