United States: Appellate Division Affirms Dismissal Of Most "Borgata Babes" Discrimination Claims

In 2003, the Borgata Hotel-Casino began hiring "costumed beverage servers" known as "BorgataBabes." Borgata sought to have the BorgataBabes reflect "the fun, upscale, sensual, international image that is consistent with the Borgata brand." The Casino's offer letter to potential BorgataBabes explained that they were required to abide by Borgata's Personal Appearance Standard (the "PAS") to retain their positions. Men and women chosen as BorgataBabes contractually agreed to adhere to the PAS. Among other things, the PAS required the Borgata Babes to be "physically fit" with weight proportional to height. The PAS required female BorgataBabes to have a "natural hourglass shape," and male BorgataBabes to have a "natural 'V' shape with broad shoulders and a slim waist." The PAS also provided for other grooming and appearance guidelines, including makeup and facial hair maintenance.

After determining that the "weight proportional to height requirement" of the PAS was too difficult to enforce, Borgata revised the policy in 2005 to require BorgataBabes to maintain a maximum weight within 7% of their "personal weight" (which was determined at the time of hiring or the time when the revised policy went into effect). Borgata occasionally weighed the BorgataBabes to ensure that they were complying with this aspect of the PAS, and employees who violated the policy were subject to discipline. Borgata did, however, make accommodations for employees who became pregnant or had a "bona fide medical condition." Although the overwhelming majority of BorgataBabes were female, the PAS also applied to male BorgataBabes.

On August 20, 2008, Jacqueline Schiavo filed the first complaint challenging the PAS and its enforcement. Twenty other women, all current or former BorgataBabes, also filed various suits against Borgata, which the New Jersey Law Division consolidated into Schiavo's action. Collectively, the plaintiffs sued under the New Jersey Law Against Discrimination ("NJLAD"), claiming that the PAS was facially discriminatory against women, that the PAS weight standard imposed unlawful gender stereotypes, that Borgata enforced the PAS in a manner that resulted in gender bias sexual harassment, and that the PAS weight standard had a disparate impact on females. In addition, individual plaintiffs alleged individual acts of workplace discrimination and harassment.

As we previously wrote about here, the trial court granted summary judgment to Borgata on all of the plaintiffs' claims, ruling that the 2005 PAS imposed reasonable workplace appearance, grooming and dress standards. The trial court noted that: "Employers are permitted to ask employees to [][remain] attractive, especially, as here, when the employee was hired – in substantial part – because of their pleasing appearance. Borgata is also permitted – as it did here – to show a preference for employees who possess a sexually attractive appearance." The Court also determined that the PAS applied equally to male and female employees (even though no male BorgataBabes had been disciplined under the policy), and added that: "While the policy may advance a societal perception that fit people are more attractive that those who are overweight, that purported stereotype impacts both male and female employees and is not actionable under the LAD."

The plaintiffs then appealed to the New Jersey Appellate Division, claiming that the trial court engaged in inappropriate fact finding, misinterpreted the NJLAD, and improperly determined that the plaintiffs did not provide sufficient evidence for their claims.

The Appellate Division began its review by quickly dispatching the plaintiffs' claim that the modified PAS weight standard and other grooming requirements were facially discriminatory. The Appellate Division found that these claims were time-barred under the NJLAD, because the plaintiffs did not file their lawsuits within two years of implementation of the modified PAS.

Turning to the plaintiffs' claim that Borgata designed and enforced the PAS such that BorgataBabes endured gender stereotyping, the Court stated that as a general principle, where an employer's reasonable workplace appearance standards comply with state or federal discrimination law, they do not violate the NJLAD (even if those policies contain sex-specific language). The Appellate Division found that the PAS applied a 7% weight "baseline" to male and female BorgataBabes equally, and recognized pregnancy as a bona fide medical condition exempt from enforcement. It was careful to note, however, that the issue was a fact-specific one, and pointed out that "from its inception, an element of performance and a public appearance component was part of the described BorgataBabe position." Accordingly, it held: "We cannot read the [NJLAD] to bar as discriminatory an employer's appearance policy requiring an associate, representing a casino business to the public, must remain fit and within a stated weight range, such as required by the PAS."

The Appellate Division then quickly rejected the plaintiffs' next two theories, that Borgata discriminated against women when implementing and enforcing the PAS, and that the use of female costumes and the PAS weight standard resulted in a hostile work environment based on gender stereotyping. For both claims, the Appellate Division found that the plaintiffs failed to present sufficient evidence to survive summary judgment.

Finally, the Court turned to the individual claims of sexual harassment and discrimination. Unlike the plaintiffs' other claims, these were not based solely on the PAS and weight requirements "per se," but instead were grounded in the allegations that the plaintiffs suffered harassment "because of a gender specific characteristic such as pregnancy or a medical condition such that the weight comments actually targeted women." For example, one plaintiff claimed that she was weighed despite being pregnant, and was told it was "just in case you're getting fat and that's the real reason." The Appellate Division determined that for these claims, the plaintiffs provided sufficient evidence to survive summary judgment.

New Jersey employers may impose reasonable workplace appearance, grooming and dress standards as long as they are applied in a non-discriminatory manner and as long as they are consistent with the nature of the business. However, although the Appellate Division upheld Borgata's appearance policy as reasonable as a matter of law, the impact of its holding is limited by the Court's recognition of the unique facts of the case and that the appearance standards would likely not be implemented in most work places and for most positions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.