Lawsuit In Waiters' Weight Fight

A man who wants to tend bar at Borgata Hotel Casino & Spa filed a lawsuit Tuesday to stop the company from enforcing new rules that ban costumed beverage servers from gaining too much weight.

James McNally's lawsuit contends the policy is discriminatory. The case was remanded to federal court; no hearing date was set.

McNally, 34, currently works in police administration. His lawyers said he had standing in the case as a potential employee covered by the Americans with Disabilities Act.

The weight 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 more than 7 percent of their weight.

Borgata officials say the seductively dressed female cocktail servers - officially dubbed 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 time they have access to a 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."

It's not clear whether employees who refuse to be weighed will be disciplined. Borgata spokesman Michael Facenda declined to comment Tuesday.

Weigh-ins began Friday and will continue until all 210 have tipped the scales, according to Facenda.

Eric Urbano, an attorney for McNally, said a weight standard can be used only if it is "an indispensable aspect of administering a job task."

"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.

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

Local 54 of the Hotel Employees and Restaurant Employees international, which represents the cocktail servers and bartenders, has filed a grievance over the weight policy.