Court Revives ‘Borgata Babe’ Harassment Suit

(CN) - The Borgata Casino's strict personal-appearance standard for its servers, known as "Borgata Babes," is not facially discriminatory, but may have contributed to sexual harassment at the Atlantic City casino, a New Jersey appeals court ruled.

Men can be "Borgata Babes," but most of the servers are women. The Borgata Casino Hotel & Spa requires both male and female Babes to be physically fit, with weight proportionate to their height. Women are to have an hourglass shape, while men have a "V" shape, with broad shoulders and small waist. Women are expected to style their hair and wear tasteful makeup.

The casino's recruiting brochure described its vision of a Borgata Babe:

"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."

Twenty-one women who are current or former Babes brought a lawsuit in county court, claiming that the Atlantic City casino subjected them to a degrading and illegal personal-appearance standard.

Babes sign a contract agreeing to the strict personal-appearance standards, and the terms of employment state that "you must maintain approximately the same physical appearance in the assigned costume."

The casino considers the Babes "similar to performance artists," expecting them to present "upscale classiness, sensuality, and confidence to build customer loyalty."

In 2004, the casino modified its employment contract to specifically state that Babes could not gain more than 7 percent of their body weight, as measured at their date of hiring.

Plaintiffs claim that this provision discriminates against women based on their gender, and subjects them to harassment by requiring them to adhere to gender stereotypes.

The trial court dismissed all claims but a three-judge appeals panel revived sexual-harassment and discriminatory-work environment claims on Thursday.

Citing times before and after servers became pregnant, the court said there is evidence that supervisors subjected some women to pervasive discriminatory comments and treatment.

One of the plaintiffs claims that a supervisor told her that women who have children should not come back to work because they get fat. Other servers faced ridicule with the casino allegedly accusing them of faking pregnancies to avoid weigh-ins.

Several women could not meet the weight requirement after pregnancy, and were forced to take another position or resign, even though their doctors told them not to diet while breastfeeding.

The 57-page opinion describes how each of the plaintiff's allegations paint a similar picture.

One plaintiff, Jacqueline "Schiavo complained to Preston Patterson, the beverage manager, when another employee was snorting like a pig toward certain female associates; Patterson did not take action," according to the ruling.

Another plaintiff, Melissa Werthmann, quoted Patterson as telling the BorgataBabes: "Don't anybody get pregnant. I don't want to hear anything about anybody's family or kids."

"The record shows only women suffered such harassment," Presiding Judge Marie Lihotz wrote for a three-person panel. "It is obvious similar comments were not directed toward men."

That said, the evidence does not support gender-discrimination claims, the court found.

The personal-appearance policy "applied to both male and female associates." and imposed the same 7 percent weight increase standard for men and for women. The policy also recognized exceptions for pregnancy and medical conditions.

"We find these provisions are not facially discriminatory," Lihotz said.

Though the Borgata suspended 25 women but no men for failing to meet the weight standard between 2005 and 2010, the court said that the statistical disparity between men and women disciplined for violating the policy is not enough to show discrimination.

The women also cannot sue the casino for allegedly enforcing the policy against female employees, but not men who committed similar infractions, because plaintiffs' testimony that they saw male Babes with "big bellies" lacks supporting evidence, the three-judge panel found.

Lihotz also said she could not find the policy contributed to hostile work environment by requiring female Babes to adhere to an overtly sexual gender stereotype - although not all plaintiffs agreed that the required costumes were too revealing or offensive.

"We do not deny the PAS [personal appearance standard] costume and physical fitness standards imposed what many would label an 'archaic stereotype' of male and female physiques," Lihotz wrote. "However, actionable conduct results when these stereotypes are shown to be accompanied by a burden on one sex over the other or are otherwise used to interfere with employment opportunities of the discriminated group. We cannot find support for the latter essential elements among the facts in this record."

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