Tuesday, September 22, 2015

Casino’s Rule Prohibiting Cocktail Waitresses from Gaining Weight Not Illegal, Court Finds

The Borgata Casino in Atlantic City, New Jersey describes its cocktail waitresses as “part fashion model, part beverage server, part charming host and hostess.” These “Borgata Babes,” as the casino calls them, are required to “be physically fit, with their weight proportionate to height, and display a clean, healthy smile.” In order to maintain these standards, the casino forbade the Borgata Babes from increasing their weight by more than 7% from the time they were hired. This rule applied to both female and male servers.  

A group of 21 waitresses sued the casino, arguing that this rule violated Title VII of the Civil Rights Act of 1964 and a New Jersey law prohibiting discrimination. The waitresses argued that the rule illegally discriminated against women, as 25 women had been suspended for violating it, and one fired, while no men had been suspended or fired. 

The court, however, dismissed these allegations, holding that just because women were found in violation of the rule more than men did not automatically mean that the casino was discriminating against women. It held that more evidence of different treatment between male and female employees was needed to show that the casino illegally discriminated against its female employees.  

Employers often ask whether they can hire only good-looking, in-shape employees, and whether they can require these employees to maintain their appearance? The answer to these questions is yes. It is not illegal to only hire good-looking employees and to require these employees to maintain their looks. However, employers with such policies must tread carefully, as they could easily run afoul of state and federal anti-discrimination laws when enforcing these policies. 

For example, if an employer applies such a rule unevenly as to one gender, it will likely be violating Title VII of the Civil Rights Act of 1964 and state laws prohibiting gender discrimination. So, an employer cannot have a policy that only women servers be required to maintain a certain weight. Such a policy must apply equally to male and female servers.  

Enforcement of physical appearance rules might also violate the Americans with Disabilities Act (ADA), which prohibits discrimination against employees with disabilities, and requires employers to make reasonable changes to the workplace that allow employees with disabilities to work. If, for example, an employee gains weight because of a medical condition, disciplining the employee for this weight gain would almost certainly violate the ADA and therefore be illegal. 

A rule prohibiting employees from gaining weight might also violate laws protecting pregnant employees, like the Pregnancy Discrimination Act and the Illinois Human Rights Act. These laws prohibit an employer from taking negative action against an employee due to becoming pregnant. The casino steered clear of violating these laws by making an exception for pregnant employees so that the weight-gain rule did not apply to them. Employers who require employees to maintain their physical appearance should do the same. 

Employers must also be sure to avoid discriminating against employees and job applicants due to their age. The Age Discrimination in Employment Act prohibits employers from taking negative action against an employee or job applicant 40 or over because of that employee’s age. While there are exceptions to this law, a policy against hiring cocktail waitresses over 40 would probably violate it.  

Employers must also be careful in the way they apply physical appearance rules to transgender employees. A rule prohibiting an employee from transitioning from one gender to another would almost certainly violate the Illinois Human Rights Act, and might even violate Title VII of the Civil Rights Act. Firing an employee for gaining weight while transitioning would probably also violate these laws. 

The reality is that some employers believe it is beneficial to their business, particularly those in service industries, to have good-looking, in-shape employees. Such a policy is not illegal per se, but may subject an employer to a lawsuit if it implements the policy in the wrong way. We recommend that employers with a policy of hiring employees based on their physical appearance consult with an experienced attorney to ensure that they are not violating the law.