A little history
The “Borgata Babes” was a term used by the Borgata Hotel Casino & Spa of Atlantic City to describe its celebrated cocktail waitresses. The women wore a uniform of high heels and tight clothing and they were supposed to meet certain physical requirements to maintain their jobs. In 2008, a lawsuit was filed by several women known as “Borgata Babes,” claiming the dress code for the servers was humiliating and caused sexual harassment, among other issues.
The original suit was shot down time and time again, but the women will finally get their day in court after a recent state appellate court ruling.
The current plaintiffs, along with other former female employees who worked as the “Borgata Babes,” claim that the rules of the casino regarding personal appearance standards subjected them to sexual harassment, illegal gender stereotyping, and other issues. Some of the women were even fired from their server positions.
One of the big issues that the women had was that the casino controlled how much the women weighed. One example of this involved a “Borgata Babe” who was suspended after she was found to be in violation of the weight rule. She was having asthma issues after giving birth to her child. She eventually was given her position back but was told by management that she had to lose a pound a week. The advice of her employer was against the orders of her physician.
The original case was dismissed in a trial court and was appealed twice. Superior Court Judge Nelson Johnson dismissed the claims in 2013 and in 2016. For his last ruling, Johnson stated that the standards of the casino regarding personal appearance are lawful. He did say a portion of the suit should return to court to decide if the casino managers were enforcing the standards in such a way that created a hostile work environment. But this never happened.
Going to court
Appellate Division Judges Susan Reisner and Hany Mawla have now ruled that the case should be remanded to the Law Division for trial. The case will be based on a claim made by the five remaining plaintiffs that the personal appearance standards of the Borgata subjected them to sexual harassment. It will also include the claim that the standards created adverse employment actions in some cases.
The judges said: “The trial court should have followed its initial inclination and scheduled the case for trial, instead of giving defendant a second bite of the apple on summary judgment issues this court already decided. The trial court had no authority to reconsider the same evidence we reviewed and reach a different legal conclusion from that evidence.”
The 2015 appellate court ruling was that 11 plaintiffs could still go to trial. However, the Borgata obtained permission by the trial court to renew their summary judgment motion, which then limited the amount of additional evidence presented. Judge Johnson upheld this. This week, the appellate judges stated that the argument in support of that motion was a distortion of their opinion.
The new ruling focused on certain plaintiffs who had medical or post-pregnancy conditions that prevented them from complying with the code.
Four of the 11 original plaintiffs settled with the Borgata. Two women declined to go forward with the second appeal. Robert Herman is representing the five remaining women in the suit. They are Tara Kennelly, Noelia Lopez, Cindy Nelson, Tania Nouel, and Jacqueline Schiavo.