Saturday, February 19, 2005

This doesn't appear to be illegal discrimination:

But it sure is ticking the union off! The Borgata -- the classiest casino in Atlantic City -- has implemented a "weight gain policy" for its "costumed beverage servers."

Come Monday, they will have to step on the scale under a formal policy forbidding them from gaining more than 7 percent of their baseline body weight. They will be suspended, then fired, if they fail to shed the excess pounds with the help of a weight-reduction program paid for by the casino.

When I discuss this with my students, they reflexively think it to be illegal discrimination. But it probably isn't. Under employment-at-will, employers can for the most part use whatever kind of employment criteria they want (good reason, bad reason, or no reason at all) so long as it doesn't fall within one of the "forbidden" discrimination categories under federal, state, or local law.

Under federal law, the categories are: race, color, ethnic origin, gender, religion, age, disability, or pregnancy. New Jersey's Law Against Discrimination adds some additional categories:

race, creed, color, national origin, nationality, ancestry, age, sex (including pregnancy), familial status, marital status, domestic partnership status, affectional or sexual orientation, atypical hereditary cellular or blood trait, genetic information, liability for military service, and mental or physical disability, perceived disability, and AIDS and HIV status.

But nowhere on these lists does it include the categories of "attractiveness" or "weight." And if they're not on the list, they should be okay to use. Unless of course, they could be "tied" to one of the already existing categories. (And this is where lawyers can sometimes make clever arguments).

The Borgata has tried to cover its tracks with "disability" or "pregnancy" by exempting weight gain related to these two categories. The obvious question is whether the policy qualifies as "gender discrimination" and perhaps "age" discrimination. For instance someone argued it's discrimination "because older women tend to carry more pounds due to their changing physiology." And men don't likewise put on the pounds as they get older?

(Perhaps a disparate impact claim on the basis of "age"? Ooh. I just found this. Apparently the Supreme Court dismissed this case without resolving the issue on the merits whether the "disparate impact" test is allowed under the ADEA and the Circuits are split on the question.)

This would qualify as "gender discrimination" it seems to me only if there were a different standard applied to male v. female employees. The Borgata appears to have covered it's tracks here as well.

Weight restrictions are being added to Borgata's appearance standards for the Borgata Babes and a handful of male bartenders who fall under the category of "costumed beverage servers." Altogether, 217 employees are affected.

This isn't a "disparate impact" for "gender" either because that would require that those not within the affected group to benefit from the policy by getting more of the jobs in question. But that's not what's happening. It's not as though the women get fired and out of shape men take their positions. Only if different standards for men v. women can be demonstrated for the class of jobs in question would it follow that this is gender discrimination.

This doesn't appear to be gender discrimination, but rather "weight" and "attractiveness" and discrimination on the basis of those two categories is, for the most part, allowed.

Perhaps the unions or bad publicity will get the Borgata to reverse its policy.

1 comment:

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