A New Jersey court recently dismissed a gender discrimination lawsuit filed by 22 employees of the Borgata Hotel-Casino. In 2003, the Borgata began hiring "costumed beverage servers" known as "Borgata Babes." The Casino's offer letter to the plaintiffs explained that they must abide by the Borgata's Personal Appearance Standard (the "PAS") to retain their positions. Among other things, the PAS required the Borgata Babes to be "physically fit" with "weight proportional to height."
After determining that the "weight proportional to height
requirement" of the PAS was too difficult to enforce, the
Casino revised the policy in 2005 to require the Borgata Babes to
maintain a maximum weight within 7% of their "personal
weight" (which was determined at the time of hiring or the
time when the revised policy went into effect). The Casino
occasionally weighed the Borgata Babes to ensure that they were
complying with this PAS (often after they asked for a larger-sized
uniform), and employees who violated the policy were subject to
discipline. The Borgata did, however, make accommodations for
employees who became pregnant or had a "bona fide medical
condition." Although the overwhelming majority of Borgata
Babes were female, the PAS also applied to male Borgata
Babes.
The Court ruled that the 2005 PAS imposed reasonable workplace
appearance, grooming and dress standards. In his opinion, Judge
Nelson Johnson stated that: "Employers are permitted to ask
employees to [][remain] attractive, especially, as here, when the
employee was hired – in substantial part – because of
their pleasing appearance. Borgata is also permitted – as it
did here – to show a preference for employees who possess a
sexually attractive appearance." The Court also
determined that the PAS applied equally to male and female
employees (even though no male Borgata Babes had been disciplined
under the policy). The opinion states: "While the policy may
advance a societal perception that fit people are more attractive
that those who are overweight, that purported stereotype impacts
both male and female employees and is not actionable under the
LAD."
This case demonstrates that New Jersey employers may impose reasonable workplace appearance, grooming and dress standards as long as they are applied in a non-discriminatory manner and as long as they are consistent with the circumstances of the business.
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