"Borgata Babes" Lose Gender Discrimination Case

Author: Beth Zoller, XpertHR Legal Editor

Date: August 13, 2013

A New Jersey Court has ruled that employers may impose reasonable weight and appearance requirements without violating gender discrimination laws under certain circumstances.

In Schiavo, et al. v. Marina District Development Company, LCC, in order to distinguish itself from competitors and present a public image as a Las Vegas style hotel, the Borgata Hotel-Casino initiated what was known as the "Borgata Babes" program. Through this program, the Borgata hoped to hire both male and female cocktail servers who were part fashion model and part beverage server. During the job application process, each candidate was informed verbally and in writing that there were standards they would have to meet for physical appearance and weight in proportion to height.

For example, cocktail servers would be prohibited from gaining more than seven percent of their body weight, subject to periodic weight checks and suspended for failing to meet the weight requirement. Borgata cocktail servers were required to sign a contract acknowledging the weight requirement and agreeing to comply with it.

Subsequently, 22 female cocktail servers sued under the New Jersey Law Against Discrimination (LAD) claiming that the Borgata had intentionally engaged in gender discrimination, that the requirements were not gender neutral and they perpetuated sexual objectification and gender stereotypes. The women also claimed that while the Borgata disciplined or terminated the female servers who gained weight, it did not take action against male servers who gained weight.

The Borgata argued that the standards were reasonable appearance, grooming, and clothing requirements. It maintained that the requirements were not discriminatory on their face or in enforcement and that they were gender neutral and made known to servers before they were hired.

The New Jersey Superior Court held that the female servers failed to establish a gender discrimination claim under the LAD because they were fully aware of the Borgata's requirements when hired and had voluntarily and willingly signed a contract detailing the standards. The court also held that the Borgata's weight standards did not amount to gender stereotyping because it regulated the appearance of both male and female servers, and applied the requirements evenly to both sexes. Because weight is not a protected category under the LAD or Title VII, an employer is permitted to show a preference for employees who maintain a sexually attractive appearance. The court noted that the weight requirement was a reasonable appearance, dress and grooming standard based in the context of the Borgata's business. Last, the court found that the servers failed to prove that the Borgata did not enforce the weight requirements with respect to male servers.