The Borgata Casino in Atlantic City successfully disposed of an action brought by 22 female employees working as “Borgata Babes.”  Borgata Babes are costumed beverage servers – described as part server and part entertainer. The 22 female plaintiffs claimed they were subjected to an atmosphere of intense sexual objectification and forced to adhere to an appearance policy that discriminated against female employees based on unlawful gender stereotyping.

Borgata Babes overwhelmingly consist of female employees – over 680 females to approximately 46 males during the relevant period. The positions are highly competitive and place a significant emphasis on physical appearance. All “Babes” had strict grooming standards and were not permitted to gain more than 7% of their body weight.  The policy provided for disability accommodations and extra time to comply with the policy if weight gain was due to a medical condition. There were 29 documented instances where women were disciplined under the policy. There were no instances where a male was disciplined.

The Superior Court held that the personal appearance standards were not unlawful gender stereotyping because the stereotype – that thinner people are more attractive – was applied equally to women and men.  The Court distinguished, for example, a case where a female was not promoted because she was too aggressive, but males were frequently promoted specifically for their aggressiveness. Here, all employees, regardless of gender, were not permitted to gain more than 7% of their weight. Although there was no documented discipline of any male employee, the Court noted that there was also no evidence that a male ever violated the policy. The Court determined that the policy was reasonable for the industry and emphasized that the employees voluntarily agreed to the policy.

Employers with workplace appearance standards should ensure that the standards are applied equally in a non-discriminatory fashion, comply with other state and federal laws, and are reasonable for the industry. The reasonableness of workplace appearance standards will be scrutinized in the context of: (1) the industry’s mores and practices, (2) the marketplace in which the employer is competing, (3) the duties to be performed by the staff, and (4) the expectations of the employer’s patrons.