As “BorgataBabes” Case Shows, Employers Can Regulate Workers Weight, Appearance

By Eric B. Meyer

Can a company regulate an employee’s weight and appearance?

According to a New Jersey appellate court, Atlantic City’s Borgata Hotel Casino & Spa can do it.

Two years ago, a New Jersey trial court judge dismissed the claims of 22 female cocktail servers, also known as “BorgataBabes,” who claimed that they were victims of gender and weight discrimination.

Borgata dictates that its BorgataBabes, both men and women, appear “physically fit,” with their weight proportionate to their height. With exceptions provided for pregnancy and other medical-related reasons, BorgataBabes could not gain more than 7 percent of their body weight (approximately one clothing size).

On appeal, the New Jersey Appellate Division agreed that, on its face, this policy was not discriminatory.

No difference in treatment of male, female employees

The court recognized that “the appearance of a company’s employees may contribute greatly to the company’s image and success with the public and thus that a reasonable dress or grooming code is a proper management prerogative.” And, while catering to customer preference may get an employer into trouble, where the business is to provide a certain look and feel, like the Borgata with its Las Vegas-style glitz and glamour, it’s OK to sex the wardrobe up a bit.

Sorry, Jack’s Junkyard and Scrap Metal.

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Because the plaintiffs lacked objective evidence that the Borgata treated its male BorgataBabes differently than its female BorgataBabes, many of the plaintiffs’ discrimination claims were dismissed.

Many of you have dress codes — albeit to deter folks from dressing too provocatively. They’re probably fine as long as they are enforced evenly.

But if you do operate a business that does require a uniform, remember that you may have a duty to accommodate certain employees based on their religious beliefs, disability, or pregnancy.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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