Personal Appearance Standards For Casino's Beverage Servers Survive Discrimination Challenge

Volume 14, Issue 23
November 6, 2015

The Borgata Casino Hotel & Spa in Atlantic City, New Jersey recently secured a victory for employers that require certain positions to conform with strict personal appearance standards in order to project a specific image to guests. In Schiavo v. Marina District Development Co. d/b/a Borgata Casino Hotel & Spa, the Superior Court of New Jersey upheld the casino's personal appearance standards, which included a weight restriction, used for the costumed beverage servers known as the "BorgataBabes."

Upon its opening in 2003, the Borgata Casino employed a specialized group of male and female costumed beverage servers who were intended to also serve as entertainers, models, and "ambassadors" of the property. BorgataBabes were required not only to serve drinks to customers on the casino floor, but also would represent the Borgata at special marketing events, player promotions, media appearances, parties, parades, and designated charity and community events. The BorgataBabes wore distinctive, custom-fitted costumes.

During and following a rigorous hiring procedure, BorgataBabes were clearly informed of the personal appearance standards associated with their position, which required, in part, that male and female BorgataBabes be physically fit, with their weight proportionate to height. They were also notified of the following requirement: "During your employment, you must maintain approximately the same physical appearance in the assigned costume."

In 2004/2005, the Borgata modified the "weight proportionate to height" standard to provide that barring medical reasons, BorgataBabes could not increase their baseline weight, as established when hired, by more than 7%. All BorgataBabes, both male and female, were then weighed to establish a baseline.

Twenty-one women challenged the BorgataBabes personal appearance standards as discriminatory under New Jersey law. They alleged that the weight standard discriminated against women both in its adoption and its enforcement. They also alleged that they were subjected to sexual harassment because of the policy.

The appeals court rejected their contention that the Borgata casino discriminated against women by adopting a 7% weight restriction. The court explained that New Jersey law allows "reasonable workplace appearance, grooming and dress standards" and that federal courts enforcing Title VII have found that such standards are not discriminatory as long as they are not more burdensome to one gender than the other. The Borgata's weight standard was not discriminatory because it imposed the same weight restriction upon men and women and recognized pregnancy, a gender specific condition, as a medical condition requiring an exception to the policy.

The fact that the female costume was more revealing than the male costume did not change the analysis because both men and women were subjected to the costume requirement and the costume was consistent with the job. The court explained that the BorgataBabes were not simply beverage servers employed at a restaurant. Instead, the BorgataBabes' position represented a "business specialization." They were the "face of the casino," employed to provide entertainment and make public appearances. They were provided with "lower and more flexible hours, more beneficial earning opportunities, and perquisites of employment" other Borgata employees did not enjoy. Moreover, the BorgataBabes were employed by a casino in the entertainment industry where the "costume may lend authenticity to the intended entertainment atmosphere." As such, the court determined that New Jersey law does not "bar as discriminatory an employer's appearance policy requiring an associate, representing a casino business to the public, [to] . . . remain fit and within a stated weight range."

While it is encouraging to see an appellate court recognize a lawful distinction for appearance policies used for certain types of casino positions, Nevada employers must recognize that the New Jersey decision is not binding on the Nevada Supreme Court or the pro-employee U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over federal claims from Nevada. Moreover, the weight standard was not put before a jury that may be sympathetic to the employees' claims particularly when such claims are linked to the employees' age and the effects age can have on appearance. Therefore, the takeaway for Nevada employers is that aggressive appearance and weight standards remain risky business, especially in relation to how they are enforced and whether they subject employees to unwanted harassment and discrimination in violation of state and federal law. Employers must continue to proceed with substantial caution in this area.

For more information about appearance policies, please contact a KZA attorney.

KZA Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.