The job requirements were… a lot: craft-beer exams, choreography, flair tricks, social media posts, and a “weight proportional to height” standard. Oh, and a mechanical bull. Eighteen longtime bartenders said the whole thing skewed younger. The court said their lawsuit had a more basic problem.
TL;DR: A New Jersey appellate court affirmed summary judgment on New Jersey Law Against Discrimination (NJLAD) age claims where the record showed the plaintiffs did not complete the employer’s qualification process and, as a result, could not show they were qualified or that the employer took an adverse action against them. The court also found the disparate impact proof was too thin to proceed.
A “bartender entertainer” concept with unusually specific criteria
A casino employer in Atlantic City created ten union “bartender entertainer” positions for a new bar concept and required employees to become “certified” for that bar by meeting a list of qualifications. Those qualifications included passing two alcohol-service courses, completing bull-riding safety training, choreography training, and working flair training, wearing assigned costumes, maintaining a weight proportional to height, serving food from specified outlets, and acting as a “social media ambassador.”
The plaintiffs were eighteen union bartenders. The opinion notes the plaintiffs’ average age was fifty-three, while the average age of bartenders hired to work at the new bar was thirty-three.
They sued under the New Jersey Law Against Discrimination (NJLAD), asserting both disparate treatment and disparate impact age discrimination.
The case turned on a basic failure-to-hire problem: no completed process, no adverse action
The court applied familiar NJLAD principles (including the McDonnell Douglas framework) and focused on the second and third prima facie elements: qualification for the position and an adverse employment action.
The court held the record did not support those elements because no plaintiff completed the application and qualification process and there was no objective evidence they were qualified for the positions. Without that, the employer did not have the opportunity to take an adverse action that could support a claim that age played a determinative role.
The opinion drives that point home plaintiff by plaintiff: many did not sign the interest sheet, did not take the required courses, did not pursue training, or “willfully” or “voluntarily” withdrew based on assumptions about meeting the criteria.
Disparate impact needed more than averages and frustration
Plaintiffs offered expert testimony that maintaining BMI and height-to-weight proportions becomes more difficult with age.
But the court emphasized that a disparate impact claim requires evidence that a facially neutral policy resulted in a significantly disproportionate adverse impact, and the record lacked evidence about how the requirements affected non-plaintiff employees.
The trial judge’s findings, quoted in the opinion, also undercut the “cumulative effect” theory: only a small number of employees had BMI testing in the subset discussed, and none of the plaintiffs were disqualified for failing bull-riding safety training, choreography training, working flair training, or the social media ambassador requirement.
Employer takeaways you can actually use
- If employees must take steps to qualify, make the steps unmistakable. Clear postings, clear prerequisites, and clear timelines give you a record that courts can evaluate without guesswork.
- Document non-selection versus non-participation. A “we didn’t pick you” case is different from a “you didn’t complete the process” case. Preserve the proof of where the process stopped.
- Be cautious with appearance and fitness standards. Even when weight and height are not protected categories, plaintiffs will argue those standards operate as proxies for protected traits. If you use them, be ready to explain why they matter and how they are applied consistently.
The punchline
This was not a decision endorsing mechanical bulls at work. It was a decision reminding everyone that an age case still needs a clean record showing qualification, an actual employment decision, and evidence tying that decision to age.