As spring rolls around and our New Year’s resolutions prove to be as empty as the treadmills in the gym we joined in January, some of us have resorted to simply buying larger pants. But for others, this sort of inaction could result in losing their job.

During a recent trip to Miami, the topic of weight gain came up, as it tends to when someone from the Northeast is thrust into bathing suit season in the middle of February. During a conversation with a friend, I learned that her employer, a global company with its headquarters in the United States, actually restricts how much weight its employees can gain. My immediate reaction was how can this be legal? Well, it turns out, in most states, it is.

While there are a few cities across the U.S. that have enacted laws preventing discrimination based on weight, Michigan is the only state that has such a law. The District of Columbia similarly prohibits discrimination based on personal appearance, but that law does not specifically bar discriminatory practices in connection with an individual’s weight.  Furthermore, while the Michigan law prohibits employers from, among other things, failing to hire, discharge or otherwise discriminate against individuals with respect to hiring or compensation based on weight, if an employer can demonstrate that a certain weight requirement is a bona fide occupational qualification reasonably necessary to the operation of the business, it could be exempt. Unfortunately, there is not much case law to demonstrate what might fall under such an exception.

In 2010, two waitresses attempted to exercise their rights under the Michigan law by alleging that their employer, Hooters of America, LLC, engaged in discriminatory practices by threatening to terminate them if they did not lose weight within thirty days. The waitresses ultimately lost their jobs due to their inability to comply with the weight requirements. However, their employment contracts included a provision requiring all disputes between Hooters and its employees be submitted to binding arbitration, so we will never know how that case would have turned out in court. Presumably, Hooters would have raised the defense that it was exempt from the law. A statement issued by Hooters likened the image standards imposed upon their employees to those required of the Dallas Cowboy Cheerleaders or the Radio City Music Hall Rockettes, which standards are legal.

A similar case was brought in New Jersey by twenty-one employees of the Borgata Hotel Casino & Spa in Atlantic City, known as the “Borgata Babes,” in Schiavo v. Marina Dist. Development Co., LLC. The female employees alleged that their employer’s Personal Appearance Standards, which provided that “Borgata Babes” were not allowed to increase their baseline weight, as established when hired, by more than 7%, were discriminatory. The New Jersey Appellate Division threw out most of the claims finding that the relevant New Jersey statute did not encompass protection against weight-based discrimination. In fact, it contained a provision allowing employers to establish reasonable appearance standards for employees and the “Borgata Babes” had all signed employment contracts agreeing to these standards.

The fact remains that in most cases, at-will employees could be subjected to the same types of requirements as my friend and her co-workers. Of course, each situation is factually different, and if you believe you may have been the victim of any type of discrimination, you should contact a labor and employment attorney to discuss your concerns.

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