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Wednesday, June 08, 2005
June 8, 2005
By Suzette Parmley
Knight Ridder Newspapers
ATLANTIC CITY, N.J. - Boyana Georgieva has no choice but to maintain her hourglass figure. As a "Borgata Babe" cocktail server, she must fit into a size 2 bustier and miniskirt. Her job depends on it.
The random weigh-ins at the Borgata Hotel Casino & Spa are being challenged on three fronts: in a lawsuit in state court in New Jersey, in two complaints filed with the state civil rights division, and in a union grievance before the National Labor Relations Board.
But the Borgata's maintain-your-weight-or-lose-your-job policy has become a hot issue that could reverberate well beyond the gambling palaces of Atlantic City.
If the Borgata prevails, the case could spur states to craft legislation that balances employers' interests in creating and maintaining a brand and employees' protection from discrimination, lawyers say.
The case raises the question of whether appearance standards can be used by an employer, said Alan B. Epstein, chairman of the Employment Law Practice Group at Spector, Gadon & Rosen in Philadelphia.
Epstein said New Jersey could set a precedent, because its courts are well-regarded on employment issues by federal and other states' courts.
"The casino is saying: 'We need pretty people to sell our brand of gambling,' " Epstein said. "What if a manufacturer says the same thing about people on its assembly line who nobody ever sees? Is the standard being set because of the nature of the business, or employers can decide these things as they wish?"
Joseph E. Schuler, a labor lawyer with Winston & Strawn L.L.P. in Washington, said the Borgata seems to have the better part of the argument because weight falls outside the protected characteristics, such as skin color or even height, in discrimination cases. Plus, the weight policy was applied equally to men and women.
Controversies over appearance standards flare up on occasion. The Hooters restaurant chain and the Abercrombie & Fitch clothing company are two of the most recent examples of the use of hiring practices to reinforce a corporate image.
The Borgata began weighing the more than 250 men and women classified as Borgata Babes on Feb. 21. Anyone who gains more than 7 percent of that weight can be suspended and ultimately fired if he or she does not lose those pounds.
James McNally, 34, of Brigantine, Ocean County, N.J., filed a lawsuit against the Borgata just as the weight policy took effect, claiming it was discriminatory and discouraged him from applying for a job as a bartender. Only a dozen Borgata Babes are men.
"I believe that the Borgata's weight-gain policy embarrasses, degrades and humiliates me in that it assumes that I cannot perform the job duties attendant to being a cocktail server in the event that I gain weight," he wrote in his complaint.
McNally's attorney, Donald B. Liberman of Hackensack, N.J., said the casino was trying to apply showgirl standards to those serving beer and coffee. The Borgata has filed a motion to dismiss the case. In April, Trisha Hart, 28, and Renee Gaud, 35, each filed a complaint with the state Division of Civil Rights claiming that the weight policy created a hostile work environment and led to their leaving jobs as Borgata Babes. Their complaints accuse the casino of "unlawful employment discrimination on the basis of sex and disability, and unlawful reprisal" in violation of the New Jersey Law Against Discrimination.
In January, Local 54 of Unite Here representing the city's hotel and restaurant workers filed a grievance against the casino, claiming it had unilaterally instituted new employment criteria without first notifying the union. The case is to go to arbitration in June.
The Borgata staunchly defends its weight policy.
"When people are putting a brand out there, they want a certain association with that brand," Borgata chief operating officer Larry Mullin said. "We've tried to elevate the position to be more than just somebody who serves a drink at a casino. It's an important part of what we offer here."
Stephen Schrier, a partner in the Cherry Hill, N.J., office of Obermayer, Rebmann, Maxwell & Hippel L.L.P., said present employment laws were designed to promote equal access to jobs, pay and promotions.
"Employers feel many of these remedial laws have been taken too far," Schrier said. "Their application today often leaves employers with their hands tied."
The Borgata's success as Atlantic City's top-grossing casino after only 22 months has prompted competitors to respond by hiring people to fit their idea of entertainment. Caesars is now the defendant in two separate lawsuits filed by bartenders who allege sex discrimination in the casino's effort to hire only female servers, or "goddesses," for its Toga Casino Bar.
Sands Casino Hotel and Harrah's Atlantic City have hired so-called "flair" bartenders, those who can flip bottles and glasses the way Tom Cruise did in the movie "Cocktail." Flair bartenders are being added to Trump Marina this summer.
"Their agenda is to get rid of the older bartenders and cocktail servers," said Al Tabei, 52, a 15-year veteran bartender at Bally's Atlantic City.
Atlantic City has seen this before.
The old Playboy Club and Golden Nugget Atlantic City casino, now Atlantic City Hilton, had a similar image policy 25 years ago. "I feel like Rip van Winkle," said Bob McDevitt, president of Local 54. "What's old is new again."
McDevitt said he remembered seeing women being weighed once a week at the Playboy Club when he worked there as a bar porter from 1981 to 1983. And when the Trump Taj Mahal opened in 1990, women applied onstage in a bikini and high heels to be cocktail servers.
Anna M. Grimes put a halt to such practices by the early 1990s when she won a discrimination lawsuit against her employer, the Sands. Grimes said she was forced to wear a revealing uniform and high heels, and was told her job was to "sell sex." Because of her victory, all of the casinos - except the Borgata - offer uniforms that include pants or shorts and flat shoes.
On a recent Friday night at the Borgata, Georgieva, 22, was working inside "B" Bar in the middle of the enormous casino floor. The brunette, who has been at the Borgata since it opened in July 2003, said she liked the job, the hours, and the tips. As does Ryan Tunnat, 28, who was tending bar in the mixx nightclub where scantily clad female dancers strut on top of the bar.
The Borgata targets primarily young, affluent types from New York and Philadelphia. Its management calls the Borgata Babes "ambassadors of the casino." Ask patrons what they think of the casino, and they gush. But ask about the new weight policy, and there is a divide.
Marty Janzen, 31, a pitcher for the Atlantic City Surf, expressed support for the casino's weight policy as he headed for the poker tables at midnight. "Look at baseball: If you don't stay in shape and can't perform your job, it's a liability," he said.
But Tom Cinquemani of Long Island would not condone it.
"The girls are really hot. I can't deny that," the 29-year-old said as he cashed in his slots winnings. "But I think it's totally wrong. They should be allowed to be who they are."
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# by Poker Absolute @ 9:36 AM
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