Filed a decade ago, a suit by employees of the Borgata Hotel Casino & Spa in Atlantic City has put appearance and weight standards front and center, and provided a rare glimpse inside the casino industry, where glitz and glamour are as much a part of the equation as slot machines and table games.

The Borgata Babes case, which yielded a recent ruling from the Appellate Division, has raised important questions about what employee appearance standards may require and how they may be enforced.

One casino gaming attorney not involved in the case, Michael Sklar, said the test for any appearance standard should be its reasonableness.

“For Borgata specifically, and other casinos, [personal appearance standards] are important because they want to create an image,” said Sklar, of Levine Staller Sklar Chan & Brown in Atlantic City. ”Back when it first opened in July 2003, the Borgata was something completely new to the AC market. It was trying to appeal to a different demographic than what had been a typical Atlantic City day-tripper customer.”

Jonathan Landesman, a partner and co-chairman of  the labor and employment law group at Cohen, Seglias, Pallas, Greenhall & Furman in Philadelphia, said, “Generally speaking, after having tried employment discrimination cases exclusively for 20 years, employers can find themselves facing lawsuits and potential liability when they adopt policies that give management too much discretion, instead of having clear rules and bright lines that everyone can read and understand and don't involve discretion.”

The Appellate Division's May 20 decision held that a trial judge erred when he dismissed a personal appearance discrimination suit filed by the cocktail servers who go by the name Borgata Babes, and ruled in favor of their employer, bypassing a September 2015 decision by the Appellate Division that as a matter of law, the servers made a prima facie showing of sexual harassment.

“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,” Appellate Division Judges Susan Reisner and Hany Mawla said in the opinion.

Robert D. Herman of Herman Law Offices in Linwood/courtesy photo.

“My clients feel elated,” said Robert Herman, a solo practitioner in Linwood who is representing the five remaining Borgata Babes plaintiffs. “They feel happy because it's been ongoing for 10 years, and they have a story to tell.”

A Borgata spokeswoman said the casino does not comment on pending litigation and turned down requests to respond to Herman's statements about the case. Emily DeSmedt and Michelle Silverman of Morgan, Lewis & Bockius in Princeton, and Russell Lichtenstein of Cooper Levenson in Atlantic City are representing the Borgata. Each declined to be interviewed.

Much of what is known about the casino's imposed “Personal Appearance Standards” (PAS) that became the focus of the case is gleaned from court testimony from both sides.

The case will go before Superior Court Judge John Porto with a trial date to be assigned.

“I'm no Gloria Allred,” Herman said of the famed women's rights attorney. “I wasn't looking for this case. This case found me.

“As much as I can disassociate myself from my clients as their attorney, I should [do so] to provide proper representation,” added Herman, 50, the son of Superior Court Judge Martin Herman, currently sitting on recall in Burlington County. “But you really, truly can't disassociate yourself emotionally because you recognize when you are dealing with other human beings, there is always some compassion for the circumstances.

“This is the big company versus the little person narrative. You have this heavily moneyed interest versus people who are not,” added Herman.

Herman said the plaintiffs came to him after Superior Court Judge Nelson Johnson, now retired, issued a written decision in the summer of 2016 that, like his prior ruling in 2013, dismissed the case.

The 2015 Appellate Division ruling had affirmed the 2013 decision by Johnson that a Borgata policy mandating that its cocktail servers maintain a certain weight range does not by itself constitute discrimination.

But that decision also held that certain plaintiffs who claimed that they were harassed over weight gained after pregnancy or because of a medical condition were entitled to a trial.

Reisner and Mawla said in their opinion on May 20 that Johnson in his 2016 ruling on remand “had no authority to reconsider the same evidence we reviewed and reach a different legal conclusion from that evidence.” They ordered the case to the Law Division for a trial on the claim that Borgata's imposition of PAS subjected the plaintiffs to sexual harassment and, in some cases, adverse employment actions.

According to Herman, by the time Johnson dismissed the plaintiffs' claims for a second time in 2016, and the state Supreme Court denied certification in the case, there were seven Borgata Babes plaintiffs of the 11 involved in the first appellate decision—and of the seven Johnson ruled against, five decided to pursue an appeal. The five are Jacqueline Schiavo, Noelia Lopez, Cindy Nelson, Tara Kennelly and Tania Nouel, all former Borgata Babes cocktail servers.

Herman said of the women. “They desire finality, and fairness in that finality. They want to provide unfiltered facts.”

When the $1.1 billion Borgata debuted on July 3, 2003, as a golden-hued, vertical spectacle in the city's Marina District, it was considered a game changer for Atlantic City and targeted a younger, hipper crowd. It brought Las Vegas glitz to what had become an aging East Coast gambling market in desperate need of a reboot.

The casino was an instant hit and has been Atlantic City's most profitable casino ever since.

With the Borgata Babes, the Borgata pulled straight from the Las Vegas playbook in bringing the quintessential cocktail waitress to life.

The Babes were so-called brand ambassadors, and anyone who became one signed a contract with management to be an integral part of the casino's image. They had their own calendars and made personal appearances at events to sell the Borgata brand.

The signature, custom-fitted, low-cut costumes designed by Zac Posen were intended to accentuate an hourglass shape for women. For the male Borgata Babes, which numbered far fewer than female Babes, the ideal was a slim waist and V-shape.

Unlike other employees, according to court documents, Borgata Babes enjoyed the use of the casino's “Babe Lounge,” which was a private, Hollywood-style dressing room, an extra 45 minutes of paid time to change into their costume and complete their personal grooming, and photo opportunities. They also had spa and fitness center access, and were reimbursed for gym memberships, use of nutritionists and personal trainers.

Then there was the 7% rule.

In late 2004, the Borgata sought to modify its PAS in a way which it believed would allow the casino “to enforce it in an objective manner,” according to court testimony.

On Feb. 18, 2005, the Borgata announced a PAS “clarification” to the original requirement to “maintain approximately the same physical appearance” as when one was hired as a Borgata Babe. Specifically, the PAS change sought to elucidate the “weight proportioned to height” standard.

Under the modified PAS, barring medical reasons, Borgata Babes could not increase their baseline weight, as established when hired, by more than 7 percent. The Borgata chose that baseline “because it reasonably approximated a change of one clothing size and it was consistent with the scientific definition of a clinically significant weight gain,” according to court documents.

Twenty of the 21 original plaintiffs worked for the Borgata before the clarified PAS took effect. In February 2005, all Borgata Babes were weighed to establish a baseline.

Each of the plaintiffs executed the modified PAS, which included the new weight standard and stated that noncompliance with the PAS would result in termination. On the document immediately above each plaintiff's signature, appeared this statement in bold, capital letters: “I READ AND FULLY UNDERSTAND THAT COSTUME REQUIREMENTS, PERSONAL APPEARANCE AND WEIGHT STANDARD, AND THE PERSONAL GROOMING STANDARDS, AS SET FORTH HEREIN, ARE EXPECTATIONS AND ONGOING REQUIREMENTS FOR ALL COSTUMED BEVERAGE SERVERS.”

Court documents showed that several plaintiffs executed the modified PAS, adding the words “under protest.” Several testified that they believed failure to accept the PAS would lead to termination.

The Borgata's PAS did not provide a fixed schedule for weigh-ins. Instead, weigh-ins were periodic, to occur, “including but not limited to,” when a Borgata Babe “requires a costume size change or whenever he/she returns from any leave of absence,” according to the PAS document.

Other weigh-ins were arbitrary and occurred when managers from the beverage and talent departments concluded a Borgata Babe's costume was ill-fitting, stated court documents. The PAS explained the procedures followed when a Babe exceeded the weight limit, allowing a period for compliance, and detailed consequences and discipline for noncompliance.

The Borgata's PAS also explained that employees could request exceptions from its enforcement because of a “bona fide medical condition” or pregnancy. For those providing proof of either, accommodations could be made, the casino said, such as adjustment of the baseline weight, allowance of additional time to comply with the standard, and medical leave.

The five plaintiffs remaining in the case cited different circumstances where they thought they would be approved for an accommodation but were not, and why they filed claims for sexual harassment. For instance, Kennelly claims she was required by her shift manager to wear a maternity costume well before she started showing physically that she was pregnant, and was required to undergo a weigh-in twice in one day. Schiavo claims she was suspended from work for failing to meet the Borgata weight standard despite her doctor's note that post-surgery medication contributed to her weight gain.

“It's one of those things, where in general, while personal appearance standards and weight standards may be permissible under New Jersey law, that does not permit them to be weaponized,” Herman said. “You take these people and recklessly apply these policies, and the effects they have on them is dramatic, like loss of job and the ability to support your family.

“Yes, these things are technically OK in certain venues, but it is still inherently problematic,” he added. “Applying these standards, oftentimes in an arbitrary manner, the harm they inflict could be horrendous.”

Levine Staller's Sklar said an appearance standard is necessary for a business such as Borgata's.

“To create that kind of image, they created the Borgata Babes, and it's important to have this personal appearance standard to enhance and bring this image to life,” Sklar said. “They believed it was necessary. There is really nothing wrong with it, and the Borgata applied it equally to men and women, it was not gender-discriminate.

“Why it's now going to trial is because it was a factually based question in terms of the enforcement of the standards, and that's always potentially an issue,” Sklar said, adding that the Appellate Division “basically gave in the opinion very specific instances that 'this is allegedly what took place with so and so,' and so we're going to a jury to decide if there was discrimination or not.”

Landesman of Cohen Seglias said Title VII  and the New Jersey Law Against Discrimination provide for different forms of discrimination: intentional discrimination involving disparate treatment, and unintentional discrimination involving disparate impact. An example of the latter is a case where an employer implements a facially neutral policy that falls more heavily on members of a protected class under the law.

With respect to the Borgata's 7% rule, Landesman said, “The court took a look at the policy … and said the policy passes muster, and there was insufficient evidence to say it fell more heavily on women than men.

“They sent it back to the trial court judge, pointing out there were a few who gained weight because of pregnancy and/or medication. It was determined there will be trial only for them—but as a general matter, there is insufficient evidence to find that the 7% rule was unlawful on its face,” Landesman added.

As of 2015, there was evidence that both female and male Borgata Babes were subject to the 7% rule, and the court said the casino did not discriminate more against women than men, said Landesman.

“Ultimately, a lot of what is left in this case is going to boil down to credibility, questions and facts,” Landesman said. “Ask the Borgata Babes to testify and allege that certain things happened to them—like being forced to go on a scale and getting weighed an inordinate number of times.

“Likewise, have Borgata witnesses testify in response to the allegations, and it will be up to a jury to decide who is telling the truth,” he said. “It will turn on who the jury is going to believe.”

Policies with clear rules and lacking managerial discretion, Landesman said: “Those are usually the cases that employers can more easily defend. Weigh everyone every 90 days, as opposed to weigh people whenever the manager thinks it's appropriate.”

For Herman, the Borgata Babes case underscores “the need to find balance and set parameters—some form of harmony between corporate profit and a workplace free of discrimination”—which, in the end, he said, benefits both business and employee.

“When you have a system where [managers] can pull you out of a crowd, single you out, torture you with the thought, 'I will wait until after lunch to weigh you,' you will get people who sometimes do bad things, and these policies—absent strict controls—can be inappropriately utilized,” Herman said. “The desire to use them in an arbitrary fashion may be tempting or even overwhelming.”