We have previously discussed how anti-discrimination laws sometime collide with businesses that strive to maintain a certain look in its employees from newscasters to shop clerks to waitresses. This includes the recent judgment against Abercombie over an employee seeking to wear an Islamic cover over her hair. Now a business has prevailed in New Jersey in claiming the right to enforce appearance standards, including weight limitations, for its waitresses. Twenty-one servers sued Borgata Casino in claiming that they were objectified and demeaned by the casino in being forced to maintain slim figures in their role as “Borgata Babes.” A state appellate court ruled that the casino could impose the requirement so long as it is down fairly and equally. It remanded the case to determine however if there were otherwise acts that constitutes a hostile work place. The appellate opinion is available below.

When the women applied for the job, it was described as “part fashion model, part beverage server, part charming host and hostess. All impossibly lovely.” Indeed, as part of their interview, they are put on the scale and told that they requires waitresses to weigh in periodically to ensure that her weight does not increase by more than 7 percent of her initial poundage. If it does, they are told that they can be fired.

Notably, in 2008, the casino reported settled a discrimination lawsuit.

Here are the findings from the lower court on what the women were told and agreed to as part of their employment:

1. When Borgata Hotel-Casino entered the Atlantic City casino market it was apparent that it was determined to distinguish itself from its competitors. To that end, Borgata presented itself to the public as a “Las Vegas Style” hotel-casino, fostering the image of the place to go for a naughty [*4] but classy good time in elegant surroundings.

2. As an integral part of its hotel-casino experience, Borgata instituted a Costumed Beverage Server (“CBS”) program — at the time, unique in the Atlantic City Market.

3. The CBS program, also known as the “Borgata Babes” program, was intended to include servers who are “[p]art fashion model, part beverage server,” “impossibly lovely,” “sensational” “ambassadors of hospitality” with “warm, inviting upbeat personalities.” It’s apparent that the Borgata was looking to hire people expected to provide services beyond that of a cocktail server.

4. Borgata hired men and women of various ages, sizes, national origins, and body types to be “Borgata Babes,” Borgata claims it received more than 4,000 applicants. Those applicants were required to first complete two rigorous interviews. Those who successfully completed the interview phase were invited to appear for a live, in-costume audition, It’s apparent that the selection process was highly competitive.

5. Individuals selected were sent an Audition Invitation Letter (“Invitation”) explaining the process and criteria by which Borgata would select its CBSs. The Invitation explained that the CBSs would [*5] be known as “Borgata Babes,” and would function as “entertainers who serve complimentary beverages to [the] casino customers.”

6. The Invitation informed those persons invited to audition that they would be evaluated based upon their appearance — including how they looked in the costume. Candidates were asked to arrive at the audition with styled hair an hour before their scheduled time to “select [their] costume, change and touch up hair if needed.”

7. The Invitation stated that successful candidates must be “physically fit, weight proportional to height” with a “clean healthy smile and attention to personal grooming.”

8. Additionally, the Invitation explained that, while the “[s]tandards and expectations for the Borgata Babes program are extremely high … [Borgata is], in return, giving a lot back to the Borgata Babe program.” Specifically, the Invitation stated that the scheduled CBS shift would be only six (6) hours, that the CBSs would be paid for an extra hour to allow for dressing room time and pre-shift, and that CBSs would be given spa treatment, photo opportunities, and free access to the fitness center.

9. At their audition, candidates were provided with a brochure that further [*6] described the Borgata Babes program. The brochure said:

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. The sensational Borgata Babes are the new ambassadors of hospitality representing our beautiful hotel casino and spa in Atlantic City. On a scale of 1 to 10, elevens all.

Eyes, hair, smile, costumes so close to absolute perfection as perfection gets, Borgata Babes do look fabulous, no question. But once you can breathe again, prepare to be taken to another level by the Borgata Babe attitude. The memory of their warm, inviting, upbeat personalities will remain with you long after the vision has faded from your dreams.

“Are you a Babe?”

That earlier decision was Schiavo v. Marina Dist. Dev. Co., LLC, 119 Fair Empl. Prac. Cas. (BNA) 847 (TOA).

This is the second loss for the women. Previously. New Jersey Judge Nelson Johnson ruled that they are hired as “sex objects” and that “Plaintiffs cannot shed the label ‘babe’; they embraced it when they went to work for the Borgata.” If you take a job as a babe, you better stay a babe. Even if the casino admits that its standard for loveliness is an “impossible” one.

Notably, Judge Johnson is the author of the book upon which the HBO series (and one of my favorite series) “Boardwalk Empire” was based.

The appellate court agreed on that point and further noted:
The record shows the BorgataBabe position comprised more than a job serving drinks and washing glasses. From its inception, an element of performance and a public appearance component was part of the described BorgataBabe position. The record does not dispute the BorgataBabes appeared as the face of the casino outside the casino floor.11 Further, based on their designated role on behalf of defendant BorgataBabes were provided lower and more flexible hours, more beneficial earning opportunities, and perquisites of employment not extended to defendant’s other associates. These facts demonstrate the business specialization of the BorgataBabes among defendant’s associates.

While Michigan prohibits discrimination based on weight and height, New Jersey does not.

The attorney for the women Deborah Mains criticized the ruling and said that “Sexual objectification has been institutionalized and is being allowed to stand.”

What do you think?

Schiavo opinion