‘Borgata Babes’ weight policy and skimpy costumes not sex bias.

A New Jersey trial court this summer rejected the claims of 22 female cocktail servers at Borgata Hotel Casino and Spa in Atlantic City who charged that the casino’s requirement for them to wear skimpy costumes and not gain more than 7 percent body weight after hire was sex discrimination.

In Schiavo v. Marina Dist. Dev. Co., LLC, Superior Court Judge Nelson C. Johnson acknowledged that the plaintiffs, known as “Borgata Babes,” may have felt that the policies subjected them to an atmosphere of sexual objectification, but that sex appeal is a common basis for marketing products and services in today’s society and the law does not regulate issues of “taste, philosophy or personal notions of morality.” He went on to explain that, under New Jersey law, Borgata could base its employment decisions and policies on notions of sexuality and attractive appearances, as long as it did not use gender stereotypes “to impose a professional disadvantage on one sex or the other.” The weight standards applied evenly to both males and females, the court found.

Borgata’s dress policy required the female “Babes” to wear tight skirts and bustier tops, while male servers wore slacks, a club-style T-shirt and black shoes.

Licentious details aside, it is difficult to find many useful takeaways for employers that do not use sexual objectification of employees’ bodies as part of their business model. Nevertheless, the case highlights that it is not sex discrimination for an employer to seek to hire attractive and fit employees for positions, or to require them to abide by a reasonable dress code, so long as the requirements do not disadvantage one gender, apply evenly to both males and females, and are not otherwise discriminatory.

Michael Homans is a Labor & Employment attorney and Chair of the Litigation Department at Flaster Greenberg PC. For more employment law updates, including news and links to important information pertaining to legal developments that may affect your business, subscribe to Michael’s blog, or follow him on Twitter @EmployLawUpdate.

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