The Borgata casino in Atlantic City opened in 2003 and recruited employees to be "BorgtaBabes" - about 200 men and women whose job was to essentially act as would be typical of a Hooters waitress.  The "Babes" were expected to make the customer's experience enjoyable by delivering drinks with a charming smile and sex appeal.  The dress codes differed for the male and female Babes, with the men wearing a black v-neck shirt with black pants and the women wearing form-fitting and skimpy skirts and tops.  The real abhorrence however is the fact that only the women were required to submit to regular weigh-ins where they were not allowed to show more than a 7% difference in body weight.  The "Personal Appearance Standards" changed over time for the women, making it more difficult to adhere to the rules.  If a woman gained weight, she was given one chance to reduce her weight through company weight-loss programs.  Twenty women were punished due to this rule and brought suit against Borgata claiming sex discrimination and violation of Title VII.

The New Jersey appellate court that heard the case ruled against the women.  It held that an employer may enforce dress codes that are sex-specific but not discriminatory, and found that the particular dress codes at issue were not discriminatory against women.  The court also somehow held that despite the fact that no men were punished under the weight rule, the rule was also not facially discriminatory.  Despite numerous cases today that provide real protection regarding discrimination against women in the workplace, some courts clearly are not following the precedent.

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