- The Washington Times - Friday, September 18, 2015

The Borgata Hotel Casino and Spa in Atlantic City can legally regulate the weight of its employees, a New Jersey appeals court ruled this week.

A split decision handed down on Thursday upholds a lower court’s ruling in which the oceanside casino was cleared of discrimination claims filed by cocktail waitresses and waiters who said they were required to stay within a certain weight.

At the same time, however, the three-member appellate panel said that some of the plaintiffs can move forward with a lawsuit that takes aim at how the casino went about enforcing the rule.

The dispute centers around personal appearance standards adopted by Borgata in 2005, which forbids employees from gaining or losing more than 7 percent of their body weight.

Appellate Division Judge Marie Lihotz wrote in the 57-page opinion that plaintiffs cannot pursue discriminations claims against the casino since male and female employees had signed off on those standards as a condition of employment.

“Moreover, there is no protected class based solely on one’s weight,” Judge Lihotz opined.

Joe Corbo, the casino’s vice president and legal counsel, told The Associated Press that he was pleased with what he hailed as “a significant victory for Borgata.”

“We have long held that Borgata’s personal appearance policy is fair and reasonable,” he told the AP. “As the court noted in its ruling, Borgata’s policy was fully and openly disclosed to all costumed beverage servers, male and female, and all of the litigants voluntarily accepted this policy before they began working for us,” he added to the Press of Atlantic City’s website.

But while this week’s ruling determined the casino’s personal appearance standards to be legal, the three-member appeals panel said a lower court must revisit part of the suit that concerns claims or harassment. Judge Lihotz said, “Some plaintiffs have alleged facts sufficient to demonstrate that the PAS weight standards were enforced in a harassing manner against women because of their gender, creating a hostile work environment.”

Indeed, 11 of the 21 plaintiffs — former and current employees of the casino —  said they were chastised over their weight. One claimed she was weighed upwards of 10 times during her employment, and another said she was suspended when her asthma medication caused her to put on extra pounds.

“Despite defendant’s ‘accommodations’ of these documented conditions, allegations have been presented showing the policy was used to harass these women,” Judge Lihotz said.

Deborah L. Mains, an attorney for the employees, said she was disappointed with the ruling and “would have preferred a different result.”

“Sexual objectification has been institutionalized and is being allowed to stand,” she told AP. “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.”

Acknowledging “the harassment claim is alive still,” however, she told the Press of Atlantic City that the next step is preparing to take those concerns back to court.

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