United States: NJ High Court Declines To Review "Borgata Babes" Case, Effectively Doubling Down On Appellate Court's Acceptance Of Atlantic City Casino's Stringent Rules On Grooming, Dress And Weight Gain

Last Updated: February 9 2016
Article by David M. Katz

"They're beautiful. They're charming. And they're bringing drinks. She moves toward you like a movie star, her smile melting the ice in your bourbon and water. His ice blue eyes set the olive in your friend's martini spinning. You forget your own name. She kindly remembers it for you. You become the most important person in the room. And relax in the knowledge that there are no calories in eye candy. Part fashion model, part beverage server, part charming host and hostess. All impossibly lovely...On a scale of 1 to 10, elevens all...The memory of their warm, inviting, upbeat personalities will remain with you long after the vision has faded from your dreams."

Do we have your attention yet?

The above passage comes directly from the Borgata Casino Hotel and Spa's recruiting brochure for its "BorgataBabes," a specialized group of costumed male and (mostly) female beverage servers.

The BorgataBabes Are Subject to Specific Personal Appearance Standards

The Borgata, which when it opened in 2003, marketed itself as Atlantic City's first Las Vegas-style resort and distinguished itself in the marketplace with the BorgataBabes, which the casino describes as more than your typical beverage servers, but rather "high-profile entertainment positions [similar to] professional cheerleaders and models—careers which require a certain appearance to portray a certain image to the public." According to the casino, the Babes, "similar to performance artists," act as entertainers and ambassadors of the casino's "stylish brand of hospitality," and are expected to deliver excellent customer service and create a feeling of "upscale classiness, sensuality, and confidence to build customer loyalty." BorgataBabes are required not only to serve drinks to customers on the casino floor, but also, to represent the casino and appear at special marketing events, be photographed in advertising, perform at promotions, make radio, television and media appearances, attend restaurant parties, parades and charity and community events. The Babes also could voluntarily participate in the "Babes of Borgata Calendar."

In keeping with its objective to create a Las Vegas-style casino image and atmosphere, BorgataBabes wore distinctive, custom-fitted costumes issued by the casino's wardrobe department. The original personal appearance standards required the BorgataBabes to be physically fit, with their weight proportionate to height, and display a clean, healthy smile. More specifically, the Babes were required to "maintain approximately the same physical appearance in the assigned costume [and] must appear to be comfortable while wearing the assigned costume for which [they] were fitted." Female BorgataBabes were to have a natural hourglass shape; males were to have a natural "V" shape with broad shoulders and a slim waist. Women were to have hair that was clean and naturally styled, and tasteful, professional makeup that complimented their facial features. Men were to be either clean shaven or have neatly trimmed and sculpted facial hair.

Shortly after introducing the appearance standards, the casino amended them to interpose a compliance standard which it believed would allow it "to enforce the [standards] in an objective manner." Specifically, under the modified version, signed by each Babe (some "under protest"), "barring medical reasons, BorgataBabes could not increase their baseline weight, as established when hired, by more than 7%." The casino selected the 7% standard because it reasonably approximated a change of one clothing size and because it was consistent with the scientific definition of a clinically significant weight gain. Rather than providing a fixed schedule, weigh-ins under the standards were "periodic," to occur, for example, when a Babe "requires a costume size change or whenever he/she returns from any leave of absence." Other weigh-ins were arbitrary and occurred when managers from the beverage and talent departments concluded a Babe's costume was ill-fitting. The standards also explained the procedures for when a Babe exceeded the weight limit, allowing a period for compliance, and detailed consequences and discipline for non-compliance. BorgataBabes could request exceptions from enforcement of the standards because of a "bona fide medical condition" or pregnancy. During the relevant time period, 686 female and 46 male associates were subject to these personal appearance standards, of which 25 women and no men were suspended for failure to comply with the weight standard.

The BorgataBabes Unsuccessfully Claim that the Personal Appearance Standards are Discriminatory

In case you haven't been following the tabloids—who, not surprisingly, have been vigilantly covering this case—a group of 21 female current or former BorgataBabes filed suit against the Borgata alleging that the casino's adoption and application of personal appearance standards subjected them to unlawful gender stereotyping, sexual harassment, disparate treatment, disparate impact, and as to some plaintiffs, resulted in adverse employment actions in violation of Title VII and New Jersey's Law Against Discrimination (the "LAD").

The casino prevailed at the trial court level, and prevailed on most claims at the appellate level. The appellate court rejected the plaintiffs' attack on the weight standards along with other grooming and appearance requirements, such as the BorgataBabes' costumes, holding: "We cannot read the LAD 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 [personal appearance standards]."

The appellate court recognized that "a reasonable dress or grooming code is a proper management prerogative," and that "there is no protected class based solely on one's weight" under Title VII or the LAD. Specifically, the court cited a seldom-litigated provision of the LAD addressing appearance: "Nothing in the provisions of this section shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law, except that an employer shall allow an employee to appear, groom and dress consistent with the employee's gender identity or expression." N.J.S.A. § 10:5-12(p). Accordingly, "[a]lthough defining different but analogous general gender appearance standards, the ... weight standard imposed the same 7% above baseline weight increase for men as for women," and therefore the court held that the weight standard was not facially discriminatory.

The appellate court also ruled that the use of differentiated costumes for male and female BorgataBabes was not actionable, as both male and female Babes wore tight-fitting costumes, and the plaintiffs could not overcome the expressed business differentiation in the role of a BorgataBabe. The court explained, "As a casino, defendant's entertainment business distinguishes this matter from other cases, as the costume may lend authenticity to the intended entertainment atmosphere." The court continued, "While we understand plaintiffs' desire to require a unisex, gender-neutral costume, which eliminates all sex-based distinctions among BorgataBabes, we cannot conclude the LAD mandates this result."

The plaintiffs (some of them at least) did not come away completely empty-handed (for now), as the appellate court remanded back to the trial court the hostile work environment sexual harassment claims of certain plaintiffs whose lack of personal appearance standards compliance resulted from documented medical conditions or post-pregnancy conditions.

The New Jersey Supreme Court Declines to Review the Appellate Court's Decision

Last month, the New Jersey Supreme Court declined to review—and therefore let stand—the appellate court's decision holding that the personal appearance standards are not facially discriminatory and that the applicable federal and state anti-discrimination laws do not encompass allegations of discrimination based on weight, appearance or sex appeal.

The takeaway for employers is that when reasonable workplace appearance, grooming and dress standards otherwise comply with applicable anti-discrimination laws, even if they contain sex-specific language, the policies likely do not violate Title VII or the LAD. However, a word of caution (and the reason for the lengthy recitation of the facts above): please remember that central to the court's holding was the type of workplace involved, a Las Vegas-style casino. As decades of case law bears out, BorgataBabe-like costumes and similar weight standards will not fly at your local bank, grocery store or accounting firm!

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.

Authors
David M. Katz
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions