A group of female “costumed beverage servers,” who were required to meet certain grooming and appearance standards at work, filed suit against their employer, alleging that they were subjected to an atmosphere of “sexual objectification” and to humiliating treatment due to discriminatory standards based on sexual and/or gender stereotypes.
What happened. From its inception, the Borgata Hotel-Casino sought to differentiate itself from other Atlantic City casinos. In presenting itself as a “Las Vegas-style” hotel-casino, Borgata implemented a costumed beverage server (CBS) program.
Applicants who successfully completed two rigorous interviews were invited to appear for a live, in-costume audition. The audition invitation letter noted that prospective CBSs would be evaluated based on their appearance and that CBSs would be referred to as Borgata Babes and would be “entertainers who serve complimentary beverages to casino customers.” The letter also stated that successful candidates must be “physically fit, weight proportional to height,” with a “clean healthy smile and attention to personal grooming” and that CBSs would work a 6-hour shift but be paid an extra hour to allow for dressing room time.
At the audition, CBS candidates were told that, if hired, they would be expected to maintain the appearance for which they were hired—a condition that was confirmed in a 2003 offer letter with an explanation of the Personal Appearance Standards (PAS) for CBSs.
Borgata offered CBSs free access to a high-end fitness center and reimbursed them for the cost of gym memberships, nutritionists, and personal trainers.
In 2005, Borgata issued a clarification to its PAS, specifying that all CBSs and costumed bartenders would be required to maintain a maximum weight of up to 7 percent above what they weighed when hired (or, for existing employees, what they weighed when the clarification went into effect), unless there was a bona fide medical condition that prevented the employee from meeting the weight standard. Otherwise, employees risked immediate suspension with pay for up to 90 days. CBSs signed the PAS, acknowledging the requirements.
Borgata modified its enforcement of the PAS in 2009, allowing CBSs who were out of compliance with the PAS to work for 90 days while participating in a fitness program and giving those returning from pregnancy 1 full year after the birth of their baby (instead of the previous 90 days after returning from maternity leave) to comply with the weight standard.
From February 2005 through December 6, 2012, 48 separate accommodations were made to female CBSs for various bona fide medical conditions; 25 of the 686 female costumed workers were disciplined for violating the weight standard; and none of the 46 male costumed workers were disciplined for violating this standard.
In their suit against Borgata, 22 female CBSs contended that the PAS is not gender neutral, that they must wear a “sexually provocative, skimpy costume whereas the men are required to wear slacks, a club-style t-shirt and black shoes”; that they “are used as nothing more than sex objects by the casino, required to adhere to a stereotype of overt and aggressive feminine sexuality”; and that male employees who gained excessive weight were not disciplined.
What the court said. The Superior Court of New Jersey said the terms and conditions of the CBSs’ employment are lawful for several reasons. First, the court said the offer letter and terms of the PAS fully disclosed Borgata’s expectations of the CBSs, and the CBSs voluntarily accepted those terms and conditions.
Second, the court concluded that the appearance and grooming standards are not unlawful gender stereotyping. “Borgata established its weight standard in an attempt to objectively regulate appearance and applied it evenly to both sexes. While the policy may advance societal perception that fit people are more attractive than those who are overweight, that purported stereotype impacts both males and females and is not actionable under the LAD [New Jersey Law Against Discrimination].”
Third, the standards outlined in the PAS are “reasonable” based on the context of Borgata’s business, the court said.
Finally, the court noted that the female CBSs presented only their own “uncorroborated, self-serving statements” to support their claims that male CBSs were treated differently.
What gender was the judge?
Male, Superior Court Judge Nelson C. Johnson.