July 31, 2013
If a casino discharges its scantily-clad cocktail servers for gaining weight, it, apparently, is considered good business practice.
But is it legal? According to a new court ruling, it is – at least in New Jersey.
That ruling was the end result of a lawsuit filed by 22 such cocktail servers against former employer Borgata Hotel Casino & Spa, located in Atlantic City, New Jersey.
The plaintiffs, former so-called “Borgata Babes,” alleged that the casino’s appearance policies forced them to work as sex objects and to adhere to standards based on gender stereotypes.
These “policies” include mandatory “uniforms” (consisting of miniskirts, cleavage-baring bustiers, black tights, and high heels) and a “weight requirement” that prohibited the servers from gaining more than 7 percent of what their body weight was when they were hired (for example, if a server weighed 120 pounds when she was hired, the policies would forbid her from gaining anything more than 8.4 pounds.
The casino conducts periodic weigh-ins on its “Babes,” who could face suspension if they fail to meet the weight requirements.
In addition, the plaintiffs alleged that the casino only enforced these weight policies against its female employees.
Since New Jersey does not have any legal protections in place prohibiting employment discrimination based on weight (nor does any other state, except Michigan), the court must have found some alternate form of discrimination; the plaintiffs argued that the casino’s policies amounted to sex discrimination, specifically “sex-stereotyping.”
“Sex-stereotyping” discrimination occurs when employers punish employees for failing to conform to common gender stereotypes. The most common of these scenarios involve either the employer’s use of stereotypes to the professional disadvantage of one sex or the employer’s penalizing of a trait in one sex that it rewards in the other.
The court wasn’t convinced, though.
The judge ruled that since Borgata’s practices applied to both its male and female “Borgata Babes” (yes, there are male Borgata Babes), the women did not suffer a professional disadvantage relative to the males “Babes” (although there have been 14 times fewer male “Borgata Babes” than female between 2005 and 2010).
Further stated by the judge was that the plaintiffs only provided “anecdotal” evidence of the casino’s one-sided enforcement of its policies.
The judge also noted, apparently as evidence to the contrary of what the plaintiffs claimed, that all of the weight accommodations (exceptions to the policy) made during that same time frame were done for female “Babes.” But considering that virtually all of these weight accommodations are pregnancy-related, I don’t really see how this fact hurts the plaintiffs’ arguments.
Finally, the judge stated that, at the outset of their employment, the plaintiffs were fully aware that they were being hired “because of their good looks and physique” and that their job duties “very much involved them making use of their attractive appearance.”
So, if it’s not unlawful sex stereotyping, what is it?
According to both the casino and the court, the policies are “reasonable workplace grooming, appearance and dress standards.”
Coincidentally, there’s a provision in the New Jersey Law Against Discrimination that allows employers “to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of State or federal law.”
If Borgata’s policies for its “Babes” are simply “grooming and dress standards,” there is very little that employers cannot require of their employees.
To be sure, outright discrimination based on sex, race, religion, and all of the rest would still be off-limits, but what’s stopping any company from mandating its employees maintain a certain body-mass index?
Or requiring any employees who choose to wear skirts to only wear skirts that are at least six inches above the knees?
Yes, Borgata also hires males to fill the drink server/sex object role, but let’s be honest: Borgata only hires male “Babes” to avoid a different sex discrimination lawsuit, one which it would lose promptly and spectacularly.
After all, I sincerely doubt that the male “Babes” are expected to flaunt their breasts or tantalize casino patrons with miniskirts. Such would be counterproductive to the desired effect the casino aims to achieve by having sex objects serving drinks.
And the sad truth is that females are, with rare exception, the singular victims of sexual objectification.
So to say that employer requirements for its cocktail waitress to physically appear as sex objects is not sex stereotyping is either supremely disingenuous or ignorant.