The Borgata Casino and Spa has successfully fought off a suit by 22 women employees over its weight-gain policy and form-fitting outfits.
Atlantic County Superior Court Judge Nelson Johnson said he saw no sex bias, based on the nature of the "Bogata Babes'' job — part cocktail waitress, part entertainer — and what they agreed to and understood about the job when hired.
So he dismissed the suit on summary judgment and gave his reasons in an opinion made public on July 23.
The plaintiffs worked as "costumed beverage servers" at the Atlantic City casino and sued under the Law Against Discrimination (LAD), alleging they were humiliated by being treated as sex objects and treated differently from male "Babes."
They had signed Borgata's "Personal Appearance Standards" policy, which stated they had to appear physically fit with a "clean healthy smile," pay "attention to personal grooming," maintain the same basic physical appearance and appear comfortable in their uniforms — miniskirts, bustiers, bolero jackets and high heels.
Johnson pointed out that the costumes were designed by Zac Posen, a judge on the Project Runway reality TV show who was known for "stream-lined and very tailored" couture.
When the Borgata opened in 2003, it required weight "proportional to height," but in 2005 changed the policy to allow no more than a 7 percent gain above current weight, or for newer employees, their weight when hired.
The 7 percent purportedly represented the gain that would require a person to go up a clothing size.
Babes were subject to weigh-ins, and if they gained too many pounds, other than as the result of a "bona fide medical condition," could be immediately suspended without pay for 90 days, during which they were to lose weight through a program that included gym membership, Weight Watchers and nutritional counseling paid for by Borgata.
Borgata revised the policy again, in 2009, allowing Babes to keep working while they shed excess pounds.
Those returning to work after maternity leave or other medical leave got 90 days to meet the weight standard.
During the relevant time period, February 2005 to December 2012, 686 women and 46 men worked as Borgata Babes. Twenty-five women were disciplined for weight gain — a few more than once — and none of the men.
The plaintiffs claimed they felt harassed by the weigh-ins and resorted to bulimia, "starving" and medication to keep from gaining weight.
They also alleged that men who gained too much weight were not disciplined and that some who did not dress according to the policy were not penalized.
Johnson's rejection of the plaintiffs' claims was based on an LAD provision that took effect in 2007 and had never been construed by a court, to his knowledge or that of the lawyers in the case.
The provision, N.J.S.A. 10:5-12p, states that the law's prohibition against discrimination does not affect the "ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards," so long as they don't interfere with gender identity or expression or violate other laws.
Johnson found Borgata's weight and dress standards were reasonable given the nature of the casino business, the expectations of casino patrons and the Las Vegas-style image Borgata sought to project from its opening in 2003 as "the place to go for a naughty but classy good time in elegant surroundings."
Borgata was clear from the start about the role of the Babes as "ambassadors of hospitality" and entertainers as exemplified in the standards it imposed and the way it went about the hiring.
When the casino opened, 4,000 people applied for the job and those who made it through two interviews had to audition, serving faux customers in revealing costumes. They were told on hiring that they would be known as "Borgata Babes."
Johnson acknowledged that the term "babe" "oozes sexual objectification" and from his perspective, the word was "at best undignified and at worst degrading."
But the plaintiffs "cannot shed the label" they embraced when they went to work for the Borgata, wrote Nelson, adding there was no indication they were forced or duped into agreeing to the appearance requirements.
The gender stereotyping they faced was not illegal, given they were hired based on their looks, he said.
Employers can show a preference for those whose are attractive in a sexually stereotypical way but cannot use such stereotypes to disadvantage one sex over the other, Johnson said. He added there was no claim that the men were praised for gaining weight or being unattractive.
Johnson noted the lack of evidence of disparate treatment, pointing out that the plaintiffs never deposed the men who they said violated weight and appearance rules, nor provided photos of them, which should have been easy to obtain from casino surveillance cameras or cellphones.
Borgata lawyer Rene Johnson declined comment, but her firm, Morgan Lewis & Bockius in Princeton, released a statement by Borgata senior vice president of operations Joe Lupo, saying the court agreed with its long-held position that the personal appearance policy is lawful and reasonable.
Deborah Mains of Costello & Mains in Mount Laurel, who represents all but one of the plaintiffs, was on vacation and could not be reached.
Metuchen solo Susan Schleck Kleiner, the lawyer for remaining plaintiff Latesha Stewart, who settled earlier, declines comment.