Give Me $5 Chips, a Jack and Coke—Hold the Cleavage: A Look at Employee Appearance Issues in the Gaming Industry

Abstract

WITH THE CONTINUED CREATION of regional gaming locations, riverboat gambling, Indian gaming, and the formation of new international gaming ventures, competition among gaming establishments is fiercer than ever. There is constant pressure to find that certain niche, image, or theme that will set a gaming establishment apart from the others. Take a close look around Las Vegas, for example, and count the number of new risque nightclubs, tantalizing themed bars, and topless showgirl productions, all just a short distance from the casino floor. You also may have noticed efforts by managers to enhance the image of their respective casinos with scantily clad “Barbie doll” cocktail servers, beefcake bartenders, and smartly dressed dealers with sex appeal and gregarious personalities. These changes typically involve personnel polices, as well as hiring and retention decisions, based on employees’ personal appearance, dress, and grooming. Unfortunately, taken to the extreme, these types of appearance based policies and employment decisions can subject employers to liability under federal, state, and local employment laws that protect employees from discrimination premised on race, sex, color, national origin, age, disability, religion, and in some instances, actual or perceived sexual orientation (“protected classes”).1 It is not enough that casino management believe their customers want or prefer employees to look a certain way. Indeed, the courts have routinely held that employers cannot justify employment discrimination on the basis of actual or perceived customer preference.2 This article seeks to highlight some of the potential legal minefields gaming establishments face when working to create a particular image or theme for their casino and surrounding services.