Las Vegas Sun

January 20, 2019

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Not hip enough?

By hiring young, pretty cocktail servers and requiring them to maintain certain sizes, don sexy uniforms and wear high heels even as they age, casinos have long tested the boundaries of discrimination laws.

Now, a federal lawsuit is highlighting the cause of another group of workers in a predominantly male profession where age and expertise have historically trumped good looks.

Legal experts say the suit, filed by a group of Mirage bartenders in December against their union and the hotel, could help clarify an emerging and controversial area of labor law.

A magistrate judge will attempt to settle the suit next month.

The complaint comes amid aggressive efforts by casinos to court younger customers with nightclubs and lounges staffed by "beautiful people." Like cocktail servers before them, bartenders are becoming front-line sex symbols representative of a resort's brand.

While the hospitality and even retail industries have attempted this for years, the trend has added significance in Las Vegas, a union stronghold for the politically powerful Culinary Union and its sister Bartenders Union Local 165.

Union contracts are designed to protect older workers by giving employees with seniority first dibs on shifts or a chance to bid for better ones. Although casino bosses don't mind older workers making beds and doing maintenance, they have privately chafed under contracts entitling workers to hold their jobs long after wrinkles, cellulite and flab have taken hold.

While pushing the envelope on entertainment, casinos are navigating choppy legal waters and witnessing how far workers will go to protect their jobs.

In 2005 Treasure Island entered into a confidential settlement with a group of over-40 male bartenders whose bar was shut down and replaced by an upscale Mexican bar and restaurant staffed by younger workers. The bartenders say they weren't allowed to bid on the jobs and received $64,000 in back pay as part of the settlement, which did not include an admission of guilt.

The Mirage bartenders claim that they were passed over for plum jobs at Jet nightclub and Stack restaurant.

The jobs weren't publicized through the normal channels by which union members bid on shifts. Rather, word of the hiring came through fliers posted by Light Group, a separate company that owns and operates the venues at Mirage.

When they inquired about the positions, workers say, they were told they would have to quit their jobs, losing their seniority and benefits, before they could apply for jobs in the new venues. The men didn't apply for the jobs, fearing that they would be taking too big of a gamble.

The bartenders say they were unaware of the fact that Mirage had created separate union contracts with the venues, allowing Light Group to bypass union seniority rules and hire nonunion people who could later join the union.

Mirage and Light Group officials declined to comment for this story. Terry Greenwald, secretary-treasurer of the Bartenders Union, called the suit "frivolous and outrageous" and said the union has protected bartending jobs held by older workers. He declined to comment further, citing pending contract negotiations with Strip hotels.

The Mirage bartenders are most upset with their union.

The Mirage and Light Group have a business reason for hiring sexy barkeeps, said bartender and lead plaintiff Robert Thomas, 51. "The union had a moral, legal and financial obligation to help us and it threw us under the bus. It added membership while we got screwed."

Casinos and unions might argue that they have little choice but to hire ever-younger eye candy to keep up with the competition.

Many nightclubs and lounges on the Strip are operated by third parties that not only seek sex appeal but also require employees to act as "hosts," recruiting business to their clubs by rounding up friends and chatting up strangers.

The union has fought casinos on issues such as requiring too-tight uniforms for women after pregnancy and putting women into higher heels, but it has also picked those battles carefully.

The Mirage lawsuit comes after nearly two years of tussling with the bartenders union and casino management. The bartenders first complained to their union, which didn't pursue the matter, and later filed a complaint with the National Labor Relations Board. The labor board didn't pursue the case but referred the men to the Equal Employment Opportunity Commission. It chose not to file a lawsuit on the bartenders' behalf, but the workers won the commission's permission to pursue their case in federal court.

Casino attorneys say unions have the flexibility to change their contracts or create new ones with the consent of employers. But attorneys for both sides acknowledge that discrimination claims present a tougher legal hurdle.

Many businesses have failed to convince courts that they are justified in hiring only the most attractive applicants because they are selling entertainment rather than, say, drinks, clothes or even airline flights.

In a landmark $50 million settlement against retailer Abercrombie & Fitch, the employment commission in 2004 concluded that the chain's marketing strategy of hiring salespeople with an "All-American" look blatantly discriminated against women and minorities.

"If the job is to entertain customers by, say, singing or dancing, that's different," said Anna Park, attorney for the commission's Los Angeles region. "But if it's to serve drinks or sell clothing, you can't exclude qualified people who can do the job but don't have the right 'look' because of their race, age or sex."

Park declined to comment on the Mirage case but said age-related complaints are rising in Las Vegas and other cities, where businesses are taking appearance codes a step further by using employees' looks to help brand products and services.

"The casino industry, similar to L.A.'s entertainment industry, wants a certain look, and unfortunately that doesn't translate into having older workers," Park said.

The bartenders' attorney, Lani Esteban-Trinidad, added: "I can understand wanting them to look kept and fashionable, but nowhere in the job description does it say you have to be attractive."

The employment commission has investigations pending against the Venetian as well as Social House, a lounge at Treasure Island, for age discrimination.

The Mirage bartenders are seeking $300,000 in damages based on tips and wages they claim they would have received had they been able to get jobs at the more lucrative venues.


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