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

"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.

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David M. Katz
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