Borgata Casino Can Dictate Servers' Weight and Appearance, Court Rules
An Atlantic City casino can fire servers if they gain or lose too much weight.
— -- A New Jersey court has ruled that an Atlantic City casino can dictate the weight of servers, saying they can't gain or lose too much weight.
The state appeals court wrote in its decision that Borgata Hotel Casino and Spa's "personal appearance standards" for its male and female costumed beverage servers, nicknamed "Borgata Babes," are lawful.
The standards include that the servers can't gain or lose more than 7 percent of their body weight. Twenty-one female servers were plaintiffs who sued the casino and claimed violations of the New Jersey Law Against Discrimination, saying the policy subjected them to illegal gender stereotyping and sexual harassment. Some of the plaintiffs said the policy resulted in adverse employment actions.
One plaintiff, who was pregnant at the time, alleged that she was told by a shift manager that she was being weighed "just in case you're just getting fat and that's the real reason why you want to wear [the maternity costume]," a court document states. She later resigned.
However, the court said part of the lawsuit should be returned to a lower court to determine if 11 of the plaintiffs were subjected to a hostile work environment over the policy's enforcement. Some of these plaintiffs' lack of compliance resulted from documented medical or post-pregnancy conditions, and they presented "a material dispute of facts" that the weight standard led to harassment due to gender.
The case began when one server, Jacqueline Schiavo, filed the first legal complaint regarding the policy on August 20, 2008.
Though employers are permitted to require reasonable appearance standards under the New Jersey Law Against Discrimination, the female plaintiffs, who wear corsets, high heels and stockings, alleged that their appearance was scrutinized more closely than their male counterparts to retain their jobs. The servers were subject to "periodic" weigh-ins, including when a costume size change was issued or an employee returned from a leave of absence.
Between February 2005 and December 2010, 25 women and no men were disciplined for failure to comply with the weight standard, the women contend.
"The plaintiffs' allegations include statements told to them by men who were not weighed or who purchased a black shirt or pants similar to their nondescript outfit to avoid requesting a new costume," the court opinion notes.
Borgata, which opened in 2003, describes a 'Borgata Babe' in a recruiting brochure as "part fashion model, part beverage server, part charming host and hostess." The company employs about 200 'Borgata Babes.' Starting in 2003, the 'Borgata Babes' could voluntarily participate in the "Babes of Borgata Calendar" that featured 12 female servers.
The court cited in its opinion that the servers agreed to the standards when they were hired. The policy states that employees can request exceptions from its enforcement due to a "bona fide medical condition" or pregnancy, the court opinion notes.
Borgata's vice president and legal counsel Joe Corbo called the ruling a "significant victory" for the casino.
"We have long held that Borgata’s personal appearance policy is fair and reasonable," Corbo said in a statement to ABC News. "We are pleased that the three appellate court judges agreed with prior rulings that our policy is lawful and non-discriminatory to women. As the Court noted in its ruling, Borgata’s policy was fully and openly disclosed to all costumed beverage servers, male and female, and all of the litigants voluntarily accepted this policy before they began working for us."
Corbo declined to comment further.
Deborah Mains, attorney for the plaintiffs, said the ruling was disappointing.
"We’re disappointed that the court didn’t recognize or find that there’s enough evidence in this case for a jury to determine that the policy was enforced discriminatorily," Mains told ABC News. "We’re disappointed that the court didn’t recognize that the evidence of sexualization of the workplace existed. For us, that was one of the crucial issues of the case. The workplace was sexualized for the women and only for the women, and therefore in our mind the policy was discriminatory, but the court disagreed."
Mains said she and the plaintiffs have not decided whether to further appeal their case.
Related Stories
ABC News Live