The “Borgata Babes” Case: Is An Employer’s Weight Requirement For Casino Waitresses ‎Gender Discrimination Or An Agreed-To “Reasonable Appearance Standard?” Part 2‎

| William A. Schreiner, Jr.

Part fashion model, part beverage server, part charming host and hostess.  All impossibly lovely.  The sensational Borgata Babes are the new ambassadors of hospitality…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. 

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

In our first post in this series, we looked at the facts of the case that 22 “Borgata Babes” brought against that Atlantic City, New Jersey casino.  In their suit, these woman alleged the casino’s enforcement of a weight requirement – no Borgata Babe (the vast majority of whom were women) could gain more than 7% of their weight while employed as “Costumed Beverage Servers” to ferry drinks to high-rollers – was applied in a way that violated New Jersey’s law barring gender discrimination, because female Babes who gained this amount of weight were disciplined or terminated while male Babes who gained weight allegedly were not.  

Borgata moved for summary judgment (which as we explained here is essentially a way a court can end a case if the facts are not in dispute and one side or the other can win on the law).  The casino argued that all of the Babes had signed an employment agreement setting out the weight requirement; additionally, it said it provided help – personal training sessions and use of the casino’s gym – to support Babes who wanted to trim any extra pounds to get back to the weight they were at when they were hired.  Furthermore, the casino contended that the weight requirement didn’t violate New Jersey’s anti-discrimination statute (which bars discrimination based on gender, among other things) because it fell into an exception in that law for “reasonable workplace appearance, grooming, and dress standards.”

Finding the facts not in dispute, a New Jersey state court granted summary judgment to Borgata.  In the court’s opinion, what the case really came down to was a battle between the contract all of the Borgata Babes had signed – in which they acknowledged the weight requirement and agreed to abide by it – and New Jersey’s state law prohibiting discrimination on the basis of gender.  

In deciding how this battle would turn out, the court made four key rulings.  First, the court held that the contract fully explained the weight requirement and set out the casino’s expectations – the Babes were to be “ambassadors of hospitality” and “entertainers [serving] complimentary beverages.”  The plaintiffs’ allegations of sexual stereotyping by being called “Babes” and forced to meet weight requirements rang hollow, the court said, because all of the plaintiffs had willfully signed that agreement: “for the individual labeled a babe to become a sex object requires that person’s participation, and nothing before the Court supports a finding of fraud, duress or coercion in connection with the plaintiffs’ hiring.”    

The court’s next three rulings focused on the plaintiffs’ argument that the weight requirement, and its enforcement on female Babes but not male Babes, violated the state anti-discrimination statute.  First, the court held that the casino’s weight standards were not an outright gender stereotype under the law because the Borgata sought to “objectively regulate appearance and applied it evenly to both sexes.”  Next, it ruled that the weight requirement met the dictionary’s definition of “reasonable” and therefore was a “reasonable appearance, grooming, and dress” standard, and fell into the exception in the law (for those of you with a particular interest in casino gaming and the history of Atlantic City, this part of the opinion includes a three-page discussion of both – not too much of a surprise, because as noted in our first part this judge wrote the book on which “Boardwalk Empire” is based).

Finally, the ruling that doomed the plaintiffs’ argument was that they hadn’t presented any evidence that the Borgata didn’t enforce the weight requirement on the male Borgata Babes.  The court suggested that even casino surveillance footage of male Babes carrying a few too many pounds may have sufficed, but the plaintiffs didn’t even have that much.  The facts were not, therefore, in dispute, and summary judgment was appropriate. 

So, in the battle between the employment agreement and the anti-discrimination law, the agreement won the day. 

The reminder for employees here, even those who spend their days in the C-suite and not carrying bourbon across a casino floor: read the contract carefully.  In some cases, of course, some statutes – such as one affecting how non-compete clauses will be interpreted – will govern over a contrary provision in a consensual agreement.  But not always, at least not for 22 Borgata Babes. 


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