A state appellate court has ruled a group of the scantily clad cocktail servers known as the “Borgata Babes” can proceed to trial against the Atlantic City casino.
The original lawsuit was filed in 2008 by five of the original 22 women who claimed the dress code for the servers at Borgata Hotel Casino & Spa created a culture of humiliation and harassment.
The case has been dismissed by a trial court and appealed twice.
“After a decade of motion practice and appeals, plaintiffs are entitled to their day in court,” Monday’s appellate court decision stated.
A spokesperson for Borgata said the casino had no comment.
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The women involved in the initial claim disputed a policy prohibiting the servers from gaining more than 7% of their body weight after they were hired, among other provisions.
Some women claimed they were told to take laxatives prior to mandatory weigh-ins or directed to stop taking prescription medications that cause weight gain, court documents show.
Then-Superior Court Judge Nelson Johnson dismissed the plaintiffs’ claims in 2013 and again in 2016.
During the case, Johnson focused on the hiring process the women endured, which he said made it clear the positions were meant to be part entertainer and part cocktail server.
All of the women involved in the case later signed statements agreeing to the weight policy, which the judge described as lawful and reasonable.
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Johnson decided the policy did not constitute sexual discrimination.
“The Borgata Babe program has a sufficient level of trapping and adornments to render its participants akin to ‘sex objects’ to the Borgata’s patrons. Nevertheless, for the individual labeled a babe to become a sex object requires that person’s participation,” Johnson wrote. “Plaintiffs cannot shed the label babe; they embraced it when they went to work for the Borgata.”
In 2015, an appellate court ruled that 11 women could still go to trial.
However, Borgata sought and obtained the trial court’s permission to “renew” its summary judgment motion with limited additional evidence presented, which Johnson upheld.
The appellate judges said the argument in support of that motion was a “distortion of our opinion.”
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“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,” Monday’s judgment read. “The trial court had no authority to reconsider the same evidence we reviewed and reach a different legal conclusion from that evidence.”
The appellate court judgment concluded the Law Against Discrimination does not encompass allegations of discrimination based on weight, appearance or sex appeal.
However, they determined Johnson erred in concluding there wasn’t basis for sexual harassment and hostile work environment.
They focused on plaintiffs who had medical conditions or post-pregnancy conditions that led to their inability to comply with the code.
“In essence, but for the subjected plaintiffs’ sex, they would not have been the object of the harassment,” the judgment stated.
Four of the 11 women settled with Borgata, and two others declined to go forward with the second appeal. The five remaining women in the suit — Tara Kennelly, Noelia Lopez, Cindy Nelson, Tania Nouel and Jacqueline Schiavo — are represented by Robert Herman, of Linwood.