Q: Did the Borgata Hotel-Casino violate NJ’s Law Against Discrimination when it required its “costumed beverage servers” to comply with its “Borgata Babe” program – a program which required the servers to maintain a maximum weight of 7% over their individual hire weight, to wear revealing uniforms, as well as makeup and hairstyles, designed to increase their sex appeal, and to be referred to as “Babes”?

A: Plaintiffs, 22 women working as “Babes” at the casino, argued that the program amounted to sex discrimination and sex stereotyping.  NJ Superior Court judge, Nelson Johnson, held that plaintiffs failed to establish gender discrimination under the Law Against Discrimination because they were aware of the Borgata's requirements when hired and had voluntarily and willingly signed a contract which explained the standards in detail. After noting that the term “Babes” “oozes sexual objectification” and is “at best undignified and at worst degrading,” Judge Johnson reasoned that since the women “embraced” the label “Babe” when they signed up for the job, they cannot “shed” it now. Nor can they “shed” the sexually revealing costumes that Judge Johnson pointed out were designed by “highly acclaimed fashion designer” Zac Posen, a judge on the television show “Project Runway” and generally considered a “high end designer” known for “stream-lined and very tailored” couture.  The court also held that there was no gender stereotyping because the weight standards applied to the appearances of both male and female servers, and plaintiffs failed to show that Borgata applied the requirements unevenly between the sexes. Interestingly, from 2005 to 2010, only 6% of the 732 “Babes” hired were men. From 2005 to 2012, 25 women (but no men) were disciplined for violating the weight rule. Judge Johnson also noted that weight is not a protected category under the LAD or Title VII (unless in some cases of obesity rising to the level of a disability), and concluded the weight requirement was a reasonable appearance, dress and grooming standard based in the context of the Borgata's business. Judge Johnson declared “context matters . . .  The Court cannot ignore the realities of the world in which both the Defendant and the Plaintiffs have chosen to do business.”  A final interesting note – the Honorable Nelson Johnson is the author of Boardwalk Empire: The Birth, High Times, and Corruption of Atlantic City, a book published in 2010, which later spawned the popular HBO television series.

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