The Borgata Babes’ long-running days in court may not be over yet.
A state appeals court delivered a split decision Thursday that keeps alive part of a discrimination suit by 21 of the cocktail waitresses against the Atlantic City casino. The ruling upheld the employer’s personal appearance standards and its right to enforce them strictly.
But the judges allowed 11 of the cocktail waitresses to continue their suit over how the management enforced those rules.
The Appellate Division decision overturns part of a Superior Court judge’s 2013 ruling that dismissed without a trial a lawsuit by current and former waitresses challenging Borgata Hotel Casino & Spa’s standards — including a rule limiting how much weight the scantily costumed workers could gain and still keep their jobs.
The judges said Thursday that the casino can have that rule, but some waitresses could go back to the lower court on a claim of “sexual harassment hostile work environment discrimination” over how executives enforced those standards.
ATLANTIC CITY — Booze, babes and baccarat.
In the 57-page ruling, the three judges wrote that 11 plaintiffs who fought Borgata’s weight standard because of “documented medical conditions or post-pregnancy conditions” could legally challenge Borgata’s “application of the ... weight standard resulting in harassment because of their gender.”
In a statement, a Borgata lawyer emphasized the ruling upheld the casino’s right to have and enforce all of its appearance rules for Borgata Babes.
“This is a significant victory for Borgata,” said Joe Corbo, vice president and legal counsel for the casino. “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,” he added.
Deborah L. Mains, the waitresses’ lawyer, said Thursday that her “initial reaction is disappointment. ... We would have preferred a different result.”
But she added that the case, which has gotten widespread media attention since the waitresses first sued in 2008, will go on — for some plaintiffs.
“Obviously for 11 of the ladies they have, the harassment claim is alive still,” she said. “The next step for that is trial.”
The appeals court noted at length that the casino made it explicitly clear to everyone it formally called a “Borgata Babe” — a job title that includes some men — that personal appearance is a major part of the job.
“They’re beautiful. They’re charming. And they’re bringing drinks,” the decision quoted part of the casino’s pitch in hiring workers to live up to that title.
“She moves toward you like a movie star, her smile melting the ice in your bourbon and water. His ice blue eyes set the olive in your friend’s martini spinning. You forget your own name. She kindly remembers it for you,” Borgata’s description of the ideal candidate goes on, before later posing a question of prospective workers: “Are you a babe?”
After several years, the casino imposed a rule that no one hired in that program — which it contends makes the Borgata Babes as much entertainers as drink servers — could gain more than 7 percent of their original body weight without facing discipline.
The plaintiffs in the case alleged Borgata didn’t enforce that rule equally for women and men.
“Plaintiffs assert they suffered severe and pervasive discriminatory comments and treatment by supervisors charged with enforcing the ... weight standard because they were women, thereby creating a hostile, intimidating and abusive work environment,” the appeals court wrote, before citing specific examples. That is the part of the suit the court allowed to proceed.
When your job title is “babe,” you can expect your employer to have something to say about y…