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

Last week, Atlantic County Superior Court Judge Nelson Johnson ruled in favor of Atlantic City's Borgata Hotel Casino and Spa in a rare weight discrimination case brought by 22 cocktail waitresses known as the “Borgata  Babes.” In this case, “the Babes” argued that the casino viewed them as nothing but sex objects and was forced to endure frequent weigh-ins and were even suspended when they gained excessive weight, which could not be seven percent 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 in 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 seven percent weight gain policy.  Johnson went on to write, “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.”  Clearly, the Court was treating this as a contract/employment case and not one of sex discrimination as the Court found nothing countervailing in New Jersey state law barring any of the casino's actions. In fact, the only state that specifically bars discrimination based on height or weight is Michigan.

For now, weight remains the last bastion of discrimination in the workplace that remains acceptable. Although a number of smaller municipalities have put in place laws to protect against discriminatory practices involving weight in the workplace there does not appear to be any momentum on any other state or municipal level for more protections.

For further information on this subject, please contact the Katz Law Group at 508-480-8202.