By: Gillian Cooper
On September 15, 2015, the Superior Court of New Jersey, Appellate Division found in Shiavo v. Marina District Development Company, LLC, that the New Jersey Law Against Discrimination (“NJLAD”) does not encompass allegations of discrimination based on weight, appearance, or sex appeal.
In seeking to stand out from other casinos in the area and to serve as the public face of the establishment, the Borgata Casino Hotel & Spa in Atlantic City created a specialized group of male and female costumed beverage servers (“Borgata Babes”) beginning in 2003. The personal appearance standards (“PAS”) requirements required male and female workers to be physically fit, with their weight propitiated to height, and have a healthy smile. The PAS also contained gender-specific requirements in terms of physical features. Upon accepting employment, the Borgata Babes contractually agreed to adhere to the standards. The servers wore outfits distinct from other staff members as well as had access to special benefits and paid time. In 2005, the Borgata updated the PAS in order to clarify the original requirement to maintain approximately the same appearance from time of hire. Barring medical reasons, the new requirements allowed weight increases within a 7% standard weight standard.
In 2008, twenty-two cocktail servers, known as “Borgata Babes”, brought suit against the Borgata alleging the corporate PAS constitute gender stereotyping and gender role discrimination in violation of the NJLAD. The Borgata Babes alleged that the PAS was, on its face, discriminatory and in violation of the NJLAD; the PAS weight standard imposed unlawful gender stereotyping; the defendant’s disparate enforcement of the weight standard resulted in gender bias sexual harassment; the PAS weight standard had a disparate impact upon females; and the Borgata’s conduct in enforcing the PAS created a hostile work environment. The trial court granted the Borgata’s motion for summary judgment finding that the Borgata’s hiring process made clear the positions were meant to be part entertainer and part cocktail server, all of the women signed statements agreeing to the weight policy, which the trial court found lawful and reasonable.
On appeal, the Appellate Division agreed and found that while the NJLAD protects broad categories of protected individuals from unlawful discrimination in the workplace, there is no protected class based solely on one’s weight. Thus, the NJLAD do not protect employees from employer policies that require both men and women to remain fit and within a stated weight range. The Appellate Division, however, also ruled that some waitresses could go back to the trial court to determine if they were subjected to a hostile work environment regarding how casino managers enforced those standards, especially against women returning from medical or maternity leave.
While Michigan is the only state that specifically bars discrimination based on weight or height, some cities, including Binghamton, New York, Madison, Wisconsin, and Santa Cruz, California also have similar protections.
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