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

250px-Borgata_acWe 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

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

  1. mahtso: …”but I thought Chris Farley was one”

    Lol, I’m not sure, I was too busy watching Patrick Swayze in that particular SNL skit. 🙂

  2. It is not a crime to be gorgeous and it is not a crime to appreciate gorgeous.

    Why would a women (or man) take a job with those parameters and then complain about it?

  3. “I’ve never seen an obese Chippendale’s model.” Correct me if I am wrong, but I thought Chris Farley was one.

  4. The requirements were known up front. These jobs can’t be looked upon as long-term employment as a practical matter. They amount to term appointments at best. Everyone’s body type goes through changes due to age and/or other reasons. Get the job, make some good tips for a while, move on.

    I’ve never seen an obese Chippendale’s model.

  5. I don’t understand how it is degrading to women that some women choose to wear “skimpy” outfits (whether at work or play). The post about the stripper who had $1,000,000 may be a factor in my lack of understanding.

    As to the merits, based on the post, I’d say it sounds like looking good was a BFOQ. Whether using percentage weight gain is necessary is another question, but that approach does eliminate subjectivity.

  6. Kraaken,
    You are correct. However, I don’t have to go their either. Mike was spot on with his observations. If they are using T&A to sell their food and drink, I have to assume the distraction is deliberate in order to hide poor quality.

  7. “As a result, I avoid those kinds of establishments where the attire requirement is degrading to women.” Mike quoting OS

    Absolutely. However, IMHO, the crux of the case is the fact that these requirements were known to the job applicants at the time of their employment, as Mike and others point out. It would seem to me that if you know the rules going in, if you accept the bustier and heels, you don’t have a lot to complain about.

  8. I wish they had never lowered the standards for Stewardesses…. Some of them now, are beasts………..

  9. “As a result, I avoid those kinds of establishments where the attire requirement is degrading to women.”

    OS said it for me as well. My added comment would be if they have to sell sex to bring in the customers, I doubt the food is that good and suspect the alcohol is adulterated. Having grown up as one, I never underestimate the childishness of a male when it comes to sex.

    As far as the case goes it should be thrown out because the company was at least explicit at the outset as to what they were looking for and in signing on for the job the server was agreeing to it.

  10. We know this decision is not politically correct. However, that should be irrelevant. It’s the correct decision IMO.

  11. Sometimes one has to make tough decisions, and not the “fake” tough decisions I hear pols talk about, and this is a tough decision. But its fair.

    Some cocktail waitresses, if the “theme” clearly calls for it, need to be attractive. What is attractive varies, but just going in the direction of putting a weight limit over AND under a hired body weight seems, in theory, reasonable. If its 1%, that’s unreasonable. 7% seems borderline to me, but I’m thinking of a woman who might be 5’7″ & weigh 125-135. If its a petite woman, maybe 95-100 lbs., 7% is significant.

    Anyway, one can go on and on about shapes & sizes, but I think the 7% sets out a reasonable “bright-line” standard. This is a legal business clearly focusing on a very, very specific qualification consistent with its theme. It is not the place of the Courts to shut down legal businesses that are not engaging in unlawful actions against a protected class. Even utilising strict scrutiny, I think this one is OK.

    But I wouldn’t want to be the manager firing the very busty & gorgeous 5′ 11″ cocktail waitress who went from a thin bodied (well, most of her body) 157lbs., to a quite realistic 172.

  12. What OS said. I have no problem with the employees having to wear a skimpy uniform if they knew about it when they were hired, but to put a cap on weight gain is unfair.

  13. That’s the problem with at will employment…. I tend to agree with the decision…. Not because I like it but because its an employers world….

  14. I understand the decision, but don’t like it. If an employer spells out physical qualifications at the outset, then there seems to be little recourse. For example, many jobs require the applicant to be able to lift at least 50 pounds so many times within a time limit. Firefighters must pass agility and strength tests.

    Having said that, I like looking at attractive women as well as the next straight guy, but every one of those women is somebody’s daughter, wife or mother. As a result, I avoid those kinds of establishments where the attire requirement is degrading to women. If the law cannot or won’t do it for me, I vote with my feet and keep my wallet in my pocket.

  15. these women well knew what they were getting into. I think the lawsuit borders on frivolous. Were I an attorney, I would not have taken this case.

  16. Professor JT: No pictures? Booo…hsssss…..come on, we need some pictures to make a decision. Lol!!

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