Feb 282005
Authors: Jake Blumberg

Whether the weight scales and the scales of justice are coming into conflict is a question some people have begun to ask because of a recent employment policy in New Jersey.

The Borgata Casino in Atlantic City, N.J., recently implemented an "appearance policy" for its cocktail servers and bartenders.

The policy affects people in the casino's "Costumed Positions," a term that describes 200 of the casino's employees, including bartenders and servers. The new addition to the appearance policy places restrictions on these employees' weights for the duration of their casino employment.

Borgata officials, who declined an interview, outlined their policy in an e-mailed statement, " For these Costumed Positions, associates will be permitted up to a 7 percent weight gain during the length of his/her employment from the weight he/she has at the time of hire and/or weight establishment. Should he/she exceed the 7 percent, Borgata will pay for a weight-reduction program while the associate is put on a leave of absence for a maximum of 90-days …We believe the policy in place is not only legal and non-discriminatory, it is also fair."

The "weight establishment" referred to in the statement applies to current employees who were hired before the new policy came into existence. Present employees were required to attend a weigh-in to establish the weights that will be used as a base weight for their future weigh-ins, taking place periodically during the employee's tenure with the casino.

In addition to defining the weight-gain policy, the statement also clarified Borgata's policy toward pregnant women, stating that pregnant employees will be given "transitional costumes" for 180 days, and upon returning will be given 90 days to achieve appearance standards, with access to a weight-reduction program during that time.

If employees do not reach the standards at that time, they will then be given 90 more days on an unpaid leave of absence to achieve their goal, with the company paying for the employees' health care costs and weight-reduction program.

Diana Zuckerman, president of the National Research Center for Women and Families in Washington D.C., has been following the situation in Atlantic City closely.

"They told the employees that the weigh-in would be done on Monday morning, and then surprised them with it at a breakfast on the Friday before," Zuckerman said. "They did not even let them eat breakfast. It has been found that people, especially women, weigh less in the early morning compared to later on in the day, so they could gain something like 4 pounds throughout the day just through natural fluid gain."

Along with the surprise weigh-in, Zuckerman has various other issues with the Borgata policy of weight-related employment.

"There are already a fair amount of eating disorders that are now going to be exacerbated by the new policy at the casino. This is not a policy to prevent fat people from working at the casino; most of the women there weigh somewhere around 100 pounds and are already concerned about their weight," Zuckerman said. "They do not need to tell them to watch their weight, they already have an incentive to do that on their own. Now, if one of these women are put on a medication that causes weight gain, like birth control can, they will be worried about losing their job."

Zuckerman feels that the policy is especially unfair to women, although men are also being subjected to it.

"With a 7 percent weight-gain policy, a man who weighs 185 pounds has a lot more room for weight gain than a woman who weighs a 100 pounds," Zuckerman said. "In addition to demeaning, this is just not a friendly company policy."

Although Zuckerman describes the policy as unfriendly, it is not illegal, said John Jostad, a CSU student affairs in higher education law professor. It does affect both men and women and does not discriminate against pregnant women.

He explained why the policy does not violate employment law.

"Generally speaking, the employer can make workplace rules regarding dress/appearance and apply those standards uniformly. An employer may, correspondingly, discipline employees for a failure to comply with those standards," Jostad wrote in an emailed interview. "Fairness is not a legal standard … The issue from an employment law perspective is whether the policy adversely affects a protected class, e.g. race, national origin, sex, age, and if it does not, it will probably be valid."

 Posted by at 5:00 pm

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