The “Borgata Babes” Case: Is An Employer’s Weight Requirement For Casino Waitresses ‎Gender Discrimination Or A “Reasonable Appearance Standard?” Part 1‎

| William A. Schreiner, Jr.

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 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.

Excerpt from a brochure recruiting candidates to work as “Borgata Babes,” serving drinks in the Borgata casino in Atlantic City, New Jersey.   

Here at Suitsbysuits, we write posts that usually focus on rather serious disputes between executives and employers: the impact of arbitration and non-compete clauses, for example; or protections for whistleblowers.  Occasionally we’ll write on more general features of employment that can impact the executive-employer relationship, such as religious discrimination or discrimination based on gender or pregnancy

Those are all, shall we say, weighty matters.  Today’s post is about a weighty matter in another sense: a lawsuit between a group of women who worked at the Borgata casino in Atlantic City, New Jersey, as cocktail servers, and alleged that the casino discriminated against them because of their gender and weight.  

The Borgata, for its part, argued that the cocktail servers really functioned more as entertainers than just waitresses, and that because of that role, its requirement that the servers not gain more than 7% of their body weight to keep their jobs was not gender discrimination under New Jersey law.  It asserted that the weight requirement fell into an exception from that state’s discrimination statute allowing “reasonable workplace appearance, grooming and dress standards.”     

Our tone should not be taken to mean we take the issues presented in the case lightly: allegations of gender discrimination, and defenses based on an employer’s need to fulfill customers’ expectations, are serious issues.  Indeed, despite its glamorous trappings, the extensive media coverage the case has collected, and the fact that the judge in the case wrote the book on which HBO’s “Boardwalk Empire” is based, last week’s decision by a New Jersey state court granting summary judgment to the casino really boils down to a rather garden-variety employment contract dispute, and presents a reminder that employees need to read those contracts carefully and understand them.

Here are the key facts, all from the court’s opinion unless otherwise noted.  The Borgata set out to create a “Las Vegas style” casino in Atlantic City, which the court interpreted to mean “the place to go for a naughty but classy good time.”  To do that, it decided to hire “Costumed Beverage Servers,” which it also called “Borgata Babes” – over 90 percent of them were women – who would be “part fashion model, part beverage server” with “warm, upbeat personalities” to serve booze to casino guests.  Out of 4,000 applicants, it selected about 700 after rigorous interviews, an in-costume audition, and a final call-back interview prefaced by an invitation stating the casino would only hire candidates with “weight proportional to height.” 

Shortly after the Borgata Babes program entered full swing, the casino clarified this weight requirement.  Deciding, according to the court, that the real issue with fluctuating weight was that it led to changes in the costume, not proportionality, the casino changed the requirement so that no Babe could gain more than 7% of his or her weight when he or she was hired (apparently, a 7% weight gain translates to an increase to the next larger size of clothes).  Employees who gained more than this amount without a medical excuse would be suspended without pay, and given 90 days to get back to his or her initial weight.  To help them along, the casino offered those employees personal training sessions and use of the casino’s gym. 

All of the Borgata Babes agreed to these requirements in an employment contract.  

Evidence submitted to the court suggests that since the Borgata Babes program has been up and running four percent of the female Borgata Babes (29 out of 686) were disciplined for failing to comply with the requirement to keep, or get back to, their hire weight.  Of the much smaller number (46) of male Borgata Babes, none were disciplined, even though – according to the 22 female Borgata Babes who sued the casino – several of the guys had gained far more than 7% of their initial weight while serving drinks, and the casino didn’t do anything to them. 

This was, said the 22 Borgata Babes, evidence of gender discrimination and a pattern of harassment about their weight.

In the next part, we’ll look at how the court reached its ruling.     


P.S.—While we may not find fame and fortune as legal bloggers, there is glory to be had in the ABA Journal’s Blawg 100 list. If you enjoy reading Suits by Suits, please consider nominating us for the Blawg 100 by Friday, August 9. It will only take a few minutes.