Job applicant sues casino over weight rules

John Curran

Wednesday, Feb. 23, 2005 | 9:11 a.m.

ATLANTIC CITY -- A legal challenge to a new weight-limit policy for Borgata Hotel Casino & Spa cocktail servers hit the courts Tuesday, with lawyers for a Borgata job applicant asking a judge to bar the casino from enforcing it.

The suit, filed by James McNally of Manahawkin, contends the policy that bans costumed beverage servers from gaining more than 7 percent of their weight is discriminatory. McNally, who has applied for a job as a bartender at the casino, says the policy violates the New Jersey Law Against Discrimination and the Americans with Disabilities Act.

On Tuesday, after a brief hearing, Superior Court Judge James Clyne in Toms River remanded the case to federal court. No hearing date was immediately set.

McNally, 34, currently works in police administration in an Ocean County community. It wasn't clear why McNally would sue the casino where he wants to work, but his lawyers said he had standing in the case as a potential employee covered by the ADA.

The policy, which Borgata has said applies to about 160 cocktail servers and 50 male costumed beverage servers, gives the casino the power to suspend or fire anyone in those jobs who gains too much weight.

Borgata officials say the female cocktail servers, who wear sexy Zac Posen-designed outfits and are officially called "Borgata Babes," are a key element of the casino's brand image and that the weight restrictions are legal, fair and necessary.

Under the policy, each of the approximately 210 workers will be weighed to establish a baseline body weight. Anyone who exceeds that weight by more than 7 percent will be suspended for up to 90 days, during which they have access to a company-sponsored weight-loss program.

If they can't drop the pounds, and have no legitimate medical excuse, the casino can fire them. Those who get pregnant -- or have a condition responsible for the extra weight -- can wear a "transitional uniform."

Unclear is whether employees who refuse to be weighed will be disciplined. Borgata spokesman Michael Facenda declined comment on that Tuesday.

Eric Urbano, an attorney for McNally, said a weight standard can only be used if it is "an indispensable aspect of administering a job task." An example, he said, would be a pilot of a single-engine airplane that could not be maneuvered by someone of a certain weight.

"Here they've made a bold assumption that weight is associated with job performance. It's an absurd assumption and it violates state and federal civil rights laws," Urbano said.

He said excepting people who can trace their weight gain to medical conditions is itself against the law because it forces employees to reveal confidential medical information to their employer.

"This lawsuit is really about protecting the dignity of employees in the workplace. Can you imagine showing up every day and your employer saying, 'Get on that scale. If we think you're too heavy, you're out of here,"' Urbano said.

Facenda declined comment on the suit. McNally could not be reached for comment Tuesday. His home telephone number is unlisted, and Urbano would not say specifically where he works.

Critics say the policy could prompt unhealthy behavior by Borgata employees who are scared of losing their jobs.

"It's a throwback to an era that doesn't exist anymore, in terms of objectifying women," said Robert McDevitt, president of Local 54 of the Hotel Employees and Restaurant Employees international, which represents the cocktail servers and bartenders.

The union has filed a grievance over the weight restrictions, which it contends violate Borgata's union contracts because they were imposed unilaterally, without consulting the union.

The policy, which was announced to employees two weeks ago, has provoked the ire of women's groups and healthy diet advocates who say it sets the stage for eating disorders.

"Any time you set weight criteria -- whether it's a drill team, the airlines, or any profession -- you're forcing individuals to react to that in ways that could be healthy or unhealthy," said registered dietitian Roberta Anding, spokeswoman for the American Dietetic Association.

"There are going to be people who say, 'I'll eat and throw up,' 'I'll eat and take laxatives,' or they'll go out and use illegal drugs like amphetamines to control their appetite. That's not everybody. But is there the potential? Absolutely."

Weigh-ins began Friday and will continue until all 210 have tipped the scales, according to Facenda. He would not say where the weigh-ins were being held, or discuss the protocol for them.