Whilst that decision disappointed the waitresses, the appeals panel also said that part of the lawsuit should continue to be pursued in a lower court to determine if the way in which the casino enforced its standards meant that 11 of the women had been subjected to a hostile work environment.
The Borgata has a rule for its employed costumed beverage servers which states that an individual may not gain or lose more than 7% of their body weight. The casino has pointed out that the rule applies equally to men and women, and that the ‘Borgata Babes’ are aware of this rule when they take on the job.
In a statement for the casino, Joe Carbo, who is its Vice President, said: ‘We have long held that Borgata’s personal appearance policy is fair and reasonable. We are pleased that the three appellate court judges agreed with prior rulings that our policy is lawful and non-discriminatory to women. As the court noted in its ruling, Borgata’s policy was fully and openly disclosed to all costumed beverage servers, male and female, and all of the litigants voluntarily accepted this policy before they began working for us.’
The Borgata Babes who brought the action against the casino argued that, whilst the rule concerning physical appearance was applicable to both men and women, the venue does not enforce it equally, making women feel intimidated and bullied. That claim of sexual harassment is the part of the lawsuit that will be explored in a lower court, but for now the Borgata is celebrating its current legal victory and its waitress must continue to keep an eye on their weight.