Fired for gaining weight? New Jersey court upholds casino policy

A New Jersey appeals court ruled on Thursday that Borgata Casino's personal appearance standards are lawful and do not constitute sexual discrimination.

Brian Branch-Price/AP/File
Borgata cocktail servers Megan Mercado (l.) and Sara Jamison fill orders for customers at the Borgata Hotel Casino & Spa in Atlantic City, N.J., Feb. 17, 2005. On Thursday, Sept. 17, 2015, an appeals panel upheld the Borgata casino's policy of regulating how much its cocktail waitresses can weigh. The court said the casino's personal appearance standards are lawful, but it also said part of a lawsuit brought by 21 servers should be returned to a lower court to determine if the women were subjected to a hostile work environment regarding how casino managers enforced those standards.

In a ruling this week, an appeals panel decided that an Atlantic City casino would be able to regulate the weight of its cocktail waitresses, but it is up the courts to decide if managers misjudged how they decided to enforce those standards.

The state appeals court of New Jersey said on Thursday that the Borgata Casino's personal appearance standards are lawful and do not constitute sexual discrimination, but would leave it to a lower court to determine if eleven of the women involved in a lawsuit over those standards were subject to a hostile work environment as a result.

"Sexual objectification has been institutionalized and is being allowed to stand," attorney Deborah Mains told the Associated Press. "It's difficult to separate the harassment claims that the court is recognizing from the overall theory that the working environment is hostile because of the personal appearance standards."

The casino applauded the ruling with the ruling.

"We have long held that Borgata's personal appearance policy is fair and reasonable," Joe Corbo, the casino's vice president and legal counsel, told AP. "We are pleased that the three appellate court judges agreed with prior rulings that our policy is lawful and non-discriminatory to women."

All so-called “Borgata Babes,” both men and women, are required to agree to the casino's personal-appearance policy when they are hired. Female servers are expected to wear tight-fitting corsets, high heels, and stockings. The casino also produces a Borgata Babes calendar, which is regularly a top-selling item.

The ruling overturned part of a 2013 lower court decision throwing out the lawsuit by former and current cocktail servers. The casino says it fired two Borgata Babes in the past for violating the policy, which prohibits servers from gaining or losing more than 7 percent of their body weight. One was fired for gaining too much weight; the other was let go for losing too much. Neither of those servers was part of the recent lawsuit.

This case is only the latest in a long history of harassment lawsuits regarding personal-appearance standards in the workplace. In 2013, a black woman in Baltimore brought forward a lawsuit against the Hooters restaurant chain, claiming that she was told she should not have highlights in her hair because of her skin color.

Sexual harassment complaints also come up routinely in the aviation industry. In 2008, The International Transport Workers' Federation (ITF), which represents over 600,000 aviation-industry workers, complained to Ryanair about their annual “Girls of Ryanair” calendar. The chief executive of the company acknowledged the complaint, but the calendar has been published continually since then, according to the Guardian.

This report contains material from the Associated Press.

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