The “Eye Candy” Exception: New Jersey Judge Rules Against Discrimination Claim Of “Borgata Babes”

We have previously discussed difficult cases (here and here and here) where physical appearance is a job criteria — leading to claims of gender discrimination. Now, New Jersey Superior Court Judge Nelson Johnson has ruled that cocktail servers known as the “Borgata Babes” at Borgata Hotel Casino & Spa can be required to keep their weight within proscribed limits as part of their job. Johnson ruled against 22 cocktail servers in a decision that found that these positions are part entertainment and part waitress — allowing the company to specify appearance requirements for women described as “eye candy.” The company required women not to gain more than seven percent body weight after their hiring. They wear cleavage-bearing bustiers and high heels at work.

The court noted that the company was clear from the outset at hiring that these were the conditions for this particular job. The women signed agreements specifying the conditions and agreeing to comply. Johnson acknowledged that this position is not appealing to many: “The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation … Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata.”

It is not clear what the applicants thought was the nature of the job when they signed these agreements and were given the bustiers and high heels. They had to audition and were given brochures describing the Borgata Babes as “part fashion model, part beverage server, part charming host and hostess. All impossibly lovely.” Ads described the women in breathless terms:

“She moves toward you like a movie star, her smile melting the ice in your bourbon and water,” the brochure states. “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.”

The fact is that there are a great number of jobs which are based on appearance. The most obvious are positions like strippers and models. However, there are also jobs that present more difficult questions like anchors and sales personnel where companies want to present a particular “look” for their product or programs. My father, an architect, once told me of a hotel in Chicago which restored an old restaurant and bar. The bar was a rather staid traditional bar with an older clientele that was losing money. The new bar was to feature Playboy bunny like waitresses in a recasting of the establishment as a men’s club. They purchased skimpy outfits and hired young attractive women only to be told by a union official that their labor agreement gave the prior waitresses priority in hiring. The result was the opening of the bar with older women wearing skimpy outfits — not exactly what the new management was going for.

This case involved a difficult record for the plaintiffs to overcome with repeated and confirmed notices of the nature of the positions and the consent of the applicants. What do you think?

Source: Press of Atlantic