A group of female cocktail waitresses – referred to as the “Borgata Babes” – have finally received a win in their suit against the Borgata Hotel and Casino which has now been in the courts for more than a decade. The Atlantic County Superior Court, Appellate Division issued a ruling on May 20, 2019 finding that the Plaintiffs’ claims of gender-based discrimination, based on Borgata’s enforcement of personal appearance standards, should be allowed to proceed to trial. In so ruling, the Appellate Division overturned the trial court and found that, while the standards themselves (including weight, appearance, and sexual appeal) do not violate anti-discrimination laws, Borgata’s enforcement of those standards could constitute gender based harassment under the New Jersey Law Against Discrimination.
Accordingly, the Appellate Division remanded the case back to the trial court to conduct further proceedings consistent with their decision. Unfortunately, this will only potentially benefit the five remaining Plaintiffs, out of the original twenty-one “Borgata Babes” who began the suit in 2008. At that time, the Plaintiffs’ alleged that they were humiliated and harassed by Borgata’s management in efforts to have Plaintiffs comply with and meet Borgata’s personal appearance standards.
The standards imposed on the “Borgata Babes” do not automatically violate anti-discrimination employment laws because of the niche role that these employees fill for the hotel-casino. The physical appearance standards are permissible because “Borgata Babes” are not merely servers or waitresses, they are also expected to work as models and hosts to entertain Borgata’s guests and give those guests a Las Vegas experience in their Atlantic City location. Thus, “Borgata Babes” are displayed as physically fit and are attired in costumes meant to emphasize their physical attractiveness. Maintaining this image is mandatory for a “Borgata Bab” to keep their job.
The physical appearance standards applied in this case are known as “bona fide occupational qualifications.” Employers are permitted, in certain circumstances, to apply policies and conditions on employment that would generally violate anti-discrimination laws, were it not for the bona fide occupational qualification doctrine. Pursuant to this doctrine, if the employer can demonstrate that a questionable policy or condition is a legitimate requirement to fill the position, courts may permit the employer to enforce the policy or condition. Courts have found bona fide occupational qualifications in varied contexts, including age-limitations imposed on pilots by airlines, and the current context, waitresses or servers classified simultaneously as models or entertainment.
Based on their allegations, these employees were subjected to physical evaluations of their attractiveness to such an extent that the Appellate Division found Borgata had blurred the line between utility and demeaning their employees. Plaintiffs were required to maintain a weight that was within seven percent of their weight at the time they were hired and were subjected to periodic weigh-ins to verify their weight. This practice resulted in a number of questionable incidents, each of which only involved female “Borgata Babes.” On one instance, plaintiff Noelia Lopez was required to lose one pound per week after gaining weight due to her medication for the severe asthma she developed postpartum. This was directly against the medical advice of her doctor. On another instance, Cindy Nelson was weighed to verify that she was pregnant (as if this was a means to verify) and “not just getting fat,” in order to obtain the maternity costume for work.
The Appellate Division found that application of Borgata’s physical appearance standards could constitute gender-based discrimination. Where an employee’s failure to conform to the standard was the result of a medical condition, and the medical condition was related to their gender, the Appellate Division found that enforcement of the standard could constitute gender-based discrimination under the NJ LAD.
As the Appellate Division remanded the issue to the trial court to ultimately rule on the issue of whether Borgata engaged in unlawful gender-based discrimination, the Plaintiffs in this case will still have to prove their case in order to obtain any award. This decision, however, is an immediate win for all future Plaintiffs who are subjected to similar treatment and seek relief under the NJ LAD. The law, as applied in this instance, gives protections to employees against their employer’s mandated physical appearance standards where the employer’s enforcement of the standards constitutes gender-based discrimination. As this case shows, enforcement of such a policy can be discrimination if enforced against employee’s whose non-compliance was due to a gender specific medical condition. Based on the Appellate Division’s willingness to find a potential NJ LAD violation here, it is likely that other exceptions will be developed in coming years.
As it stands, discrimination based upon weight and physical appearance is permissible under New Jersey law in certain circumstances pursuant to the doctrine of bona fide occupational qualifications. Accordingly, Borgata’s hiring and retention practices are generally permitted to continue. However, with this most-recent development, Borgata’s enforcement of their standards – and the enforcement of similar standards by other employers – will face greater scrutiny by the courts. Employees subject to physical appearance standards who believe their employer’s enforcement of those standards against them was discriminatory now have an avenue to fight back.