The Borgata Hotel and Casino in Atlantic City explicitly hires cocktail waitresses based on appearance. The women are told that they must meet and maintain certain weight standards, and must wear skimpy outfits as part of the Casino's business model. A group of 22 of the servers sued under state law, alleging sex discrimination. They alleged that male servers were not held to the same standards of appearance.

Last month in a high profile decision, a New Jersey judge rejected these claims. Basically, the judge concluded that the plaintiffs knew what they were getting themselves into, and that the Casino had been clear about the fact that personal appearance was a key component of the job. The employer was entitled to use sexual objectification and gender stereotypes as the basis for employment decisions as long as it was not used to punish one gender or to impose a professional disadvantage.

Not many employers can argue that sex appeal is a requirement of the job. Businesses such as Hooters have claimed for years that their servers also play an important role as entertainers, and that their business model requires exploitation of the female body. For most businesses, these arguments will not work. Employers can enforce reasonable dress and appearance policies, but weight and age standards will be found to be discriminatory in most circumstances. Employers that decide to make employment decisions on these factors should have clear and explicit policies and disclosures to applicants and employees that demonstrate the business need for these rules.