On Thursday, a New Jersey appeals court ruled that the Borgata Hotel Casino and Spa didn’t engage in gender discrimination by requiring its “Borgata Babes” to stay within a certain weight and taking disciplinary action against those who put on pounds.
The “Babes” work as waitresses at the Atlantic City casino, but are also a big part of the company’s branding; they’re featured in a “Babes of Borgata” calendar, for example. According to court documents, all those applying to work as “Babes,” male and female, had to sign a “personal appearance standard” (PAS) agreement as a condition of being hired that stipulated that they had to maintain their physical appearance, including weight limits as well as a “clean healthy smile” and “personal grooming.” They also had to appear comfortable in their uniforms, which for women consist of miniskirts, bustiers, corsets, bolero jackets, and high heels.
When the casino first opened in 2003, employees were required to maintain a weight that was proportional to their height, but in 2005 it was changed to say they were not allowed to gain more than 7 percent above a certain limit or their initial weight when hired. The employees then had to undergo frequent weigh-ins and, if they were found to have gained too much, could be suspended without pay for 90 days while they were forced to lose weight through a company-mandated program. In 2009, that was revised to allow Babes to keep working while they lost weight and allowed more time for those returning from maternity or medical leave.
The female plaintiffs claimed they were treated as sex objects and also treated differently than the male Babes. They alleged that they were told to take laxatives or stop taking prescription drugs that cause weight gain before weigh-ins. They also said they were disciplined for offenses as minor as eating a cookie. There were far more female Babes than male ones — 646 women and 46 men between February 2005 and December 2010 — and all of those with weight accommodations were women.
But Appellate Division Judge Marie Lihotz wrote in her ruling this week that the policy doesn’t constitute gender discrimination because both male and female employees were made to sign on. “We do not deny the PAS costume and physical fitness standards imposed what many would label an ‘archaic stereotype’ of male and female employees,” she wrote in her decision. “However…actionable conduct results when the stereotypes are shown to be accompanied by a burden on one sex and not the other or are otherwise used to interfere with employment opportunities of the discriminated group.”
“Moreover, there is no protected class based solely on one’s weight,” she added.
The ruling affirmed one in 2013 from an Atlantic County Superior Court judge that also dismissed the discrimination claim. “The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation,” the judge wrote. “Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata.”
On Thursday, one of the plaintiffs lawyers hit back against the ruling. “I’m disappointed in the finding that a policy that even the court found to be based on an archaic stereotype did not violate the Law Against Discrimination,” said Nancy Smith of Smith Mullin. “There is no business justification for turning women into sex objects.”
But Borgata praised it. “We have long held that Borgata’s personal appearance policy is fair and reasonable,” said Joseph Corbo, the casino’s legal counsel. “We are pleased that the three appellate court judges agreed with prior rulings that our policy is lawful and non-discriminatory to women.”
The court did, however, allow claims from 11 of the original 21 plaintiffs to move forward alleging that they were sexually harassed after gaining weight thanks to pregnancy or illnesses. One said she was weighed eight or ten times despite medical documentation of a condition that causes weight gain; another said a supervisor accused her of faking a pregnancy to justify her weight gain; and another said she was suspended because of weight gain caused by asthma medication.
While gender is a protected basis of discrimination, weight is not in most of the United States. Michigan is the only state that specifically bars discrimination based on weight or height. That law has been put to the test in a similar case as the one brought against Borgata but in Michigan against a Hooters restaurant that allegedly disciplined a woman for her weight. Some cities, including Binghamton, New York, Madison, Wisconsin, and Santa Cruz, California also have protections.
Studies have found, though, that many people face discrimination based on their weight. Obese women are paid less than women of a different size; in fact, very heavy women earn nearly $19,000 less a year than average women while very thin women earn $22,000 more.