Twenty-two cocktail waitresses from the Borgata Hotel Casino & Spa in Atlantic City, New Jersey, better known as the “Borgata Babes,” filed a suit during the summer of 2012 against their employer, charging employment discrimination based on weight and sex. The plaintiffs presented evidence that they endured periodical weigh-ins and were even suspended if they gained more than seven percent of their weight at the time they were hired. Judge Nelson Johnson of the Atlantic County New Jersey Superior Court concluded that nothing in New Jersey’s laws against discrimination prohibited any of the casino’s actions. Essentially, the court concluded that the plaintiff “babes” signed an employment agreement accepting the weight restrictions.

Not all discrimination is illegal

In California and in 48 other states, it is legal to discriminate at work against a person based on weight. Employment discrimination is illegal only if a member of one of the legally protected categories is suffering differential treatment.

In all 50 states, it is legally permissible for an employer to discriminate against a person because he or she does not like the worker.

Protected categories in California

The Fair Employment and Housing Act (FEHA), California’s civil rights law, outlaws discrimination in the workplace based on the following protected groups:

Since its state courts have not identified weight problems as a disability, California law does not protect the weight category.

Jurisdictions that outlaw discrimination based on weight

Michigan is the only state to prohibit employment discrimination based on weight and height. However, Santa Cruz, California passed a city ordinance in 1992 prohibiting unlawful discrimination based on weight and height, as along with other traditionally protected classes. San Francisco followed suit in 2000, passing a similar local ordinance outlawing discrimination based on weight.

Illegal employment discrimination may be difficult to identify and prove. If you feel that you have suffered differential treatment at work, schedule a free consultation with our experienced San Diego employment discrimination attorney to have your case evaluated.