Looking for the Superemployee

We know how critical it is to be able to work, and we dangle the expectation that those with drive and ambition will be successful in the workplace and will be allowed to advance according to their abilities. The only citizens who are not expected to work are those who are certified as too disabled to work. However, we appear to be moving in the direction of creating new classes of unemployable people who are not disabled. If every employer applied the same standards as some employers are being applauded for upholding, we will soon have a class of people who aren’t disabled, but nonetheless find their job possibilities extremely limited. Is that really the direction in which we want to be headed?

In January, 2005, Weyco, a healthcare benefits company in Okemos, Michigan, had its fifteen minutes of fame, when it announced that employees failing a smoking test which would detect even those employees who occasionally smoked away from work would be fired. (See Flash in the Pan, or Threatening Trend: Workplace Smoking Restrictions). In the 21 states without laws preventing employers from imposing these kinds of restrictions, the default is “employment-at-will,”where employers can fire their employees for any reason, or no reason, as long as the reason is not an illegal one.

As I’ve pointed out before, if every employer adopted Weyco’s lead, then we’d have an astronomically high unemployment rate (of 25% or more, since as many as 23% smoke), and our economy would grind to a halt. Unemployment insurance systems would collapse, all the smokers who need additional medical care would be unable to pay for it, shifting the burden to taxpayer-funded public hospitals, and the stress of being unemployed and broke is hardly conducive to encouraging any smoker to quit. But that hasn’t yet stopped Weyco, and it’s unclear how many other employers may choose to follow Weyco’s lead.

Another employer, the Borgata Hotel Casino and Spa in Atlantic City, New Jersey, has also recently attracted attention for its weight policy. Its female servers, known as “Borgata babes,” are subject to a weight policy designed to ensure that “the best-looking girls [a]re at Borgata.” According to the policy, all new “babes” will be weighed when hired (and only those with a “natural hourglass body shape” are hired to begin with). Those who gain more than 7 percent of their body weight will be put on a 90-day leave. Borgata will offer a personal trainer and nutritionist, but if servers can’t lose the weight, they will be fired. Pregnant servers get 90 days to get back in shape after their maternity leave. (See Star-Ledger article.)

Horror stories from the Borgata babes abound: servers claim that it is nearly impossible to get a larger uniform — in one case, a server in a size 00 has been unable to get a size 0, one waitress said. But if a girl gets breast implants, a larger uniform is allowed, according to two waitresses. They claim a “babe” can’t have mayo on her sandwich or fries on the side without unofficial diet cops asking if she really needs it, while gamblers and dealers have started a new game: guess a “babe’s” weight. As one union official remarks, “The policy sets women back 25 years,” as women had successfully fought in the 70s and 80s to relax these kinds of weight and appearance restrictions in Atlantic City casinos.

Borgata is not the only casino to enforce draconian expectations about how women should look. As previously reported here, Harrah’s Reno fired a woman everyone acknowledges was a great bartender, because she refused to wear makeup. (See Have They Ever Shared a Bathroom with a Woman?) What’s worse, a federal appellate court agreed with the policy, saying that the bartender, Darlene Jespersen, did not make an adequate showing that wearing makeup was more of a burden than the grooming standards imposed on male servers. The lone dissenter remarked, “[A] reasonable jury could easily conclude that having to wear approximately as much makeup as one was wearing post-makeover, in addition to teasing, curling, or styling one’s hair every day, constitutes more of a burden than having to keep one’s hair short and cut one’s fingernails.” See Jesperson v. Harrah’s 9th Circuit decision.

Harrah’s weight policy, which has not yet been challenged in court, says that

[Beverage Service Personnel] must be well groomed, appealing to the eye, be firm and body toned, and be comfortable with maintaining this look while wearing the specified uniform. Additional factors to be considered include, but are not limited to, hair styles, overall body contour, and degree of comfort the employee projects while wearing the uniform.

Similar to Borgata’s, those servers at Harrah’s Reno who gain weight find it difficult to get new uniforms (unless they’ve had breast enhancement surgery), and pregnant mothers, even those who are nursing, have only 90 days to get back to their pre-pregnancy weight. (See Barbwire article.)

You might argue that it’s not unreasonable for casinos to have these kinds of restrictions. After all, as a Borgata representative claims, the babes “are the brand and the image and the ambassadors for Borgata,” likening them to the Dallas Cowboys cheerleaders. (See Star-Ledger article.) That may be true, but where does it end? A recent poll revealed some startling findings:

39% said employers should have the right to deny employment to someone based on appearance, including weight, clothing, piercing, body art, or hair style

33% said that in their own workplace workers who are physically attractive are more likely to be hired and promoted

33% said workers who are unattractive, overweight, or generally look or dress unconventionally, should be given special government legal protection such as that given persons with disabilities.

Of the 39% who said employers should have the right to deny employment based on looks, men outnumbered women 46% to 32%. And whites outnumbered non-whites 41% to 24%.

(See Employment Law Alliance press release) While one-third of those polled think that there should be legal protection against appearance discrimination, they are outweighed, so to speak, by the 39% (including a higher percentage of white men) who think that this kind of discrimination is perfectly acceptable. As one commentator pointed out, “So maybe the hot people do get the jobs, but I sure don’t see a lot of hot CEOs out there strutting their stuff.” (See Indianapolis Star article.)

Will weight and appearance restrictions spread to more jobs? Will their effect be to make it even more difficult for poor people to get ahead? Just one example chronicled by David K. Shipler in his book “The Working Poor,” relates to a woman who, due to poverty, had lost her teeth and could not get properly fitting dentures. As Shipler pointed out, “I always had the sense, I’m sure no employer would admit this directly, but that without that thousand-watt smile that Americans prize so dearly, she was not allowed to work in ongoing contact with the public. So she never got the kind of job that would allow her to move up.” (See PBS interview.)

Perhaps the only thing keeping even more restrictions from happening is the fact that wealthier folks are getting heavier too. A just-released study found that obesity is growing fastest among Americans who make more than $60,000 a year:

In the early 1970s, 22.5 percent of people with incomes below $25,000 were obese. By 2002, 32.5 percent of the poor were.

Just 9.7 percent of people with incomes above $60,000 were obese in the 1970s — a figure that jumped to 26.8 percent in 2002.

(See Chicago Sun-Times article.)

Perhaps all of those white male smokers making $60,000 and up, who used to think appearance and lifestyle discrimination is acceptable in the workplace, will soon find their waistlines interfering with the bottom line. Until then, the number of those — right now at 16% — who said they had been the victim of appearance-based discrimination, is likely to keep growing, and growing, and growing.

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Madeline Messa

Madeline Messa is a 3L at Syracuse University College of Law. She graduated from Penn State with a degree in journalism. With her legal research and writing for Workplace Fairness, she strives to equip people with the information they need to be their own best advocate.