By: Katherine Stuart
The remaining plaintiffs in the 11-year old, “Borgata Babes” case can proceed to litigate alleged violations of the New Jersey Law Against Discrimination (LAD). On May 20, 2019, the Superior Court of New Jersey, Appellate Division, reversed a July 15, 2016, trial court order that granted summary judgment to defendant Marina District Development Company (Borgata).
Personal Appearance Standards
In 2003, the Borgata Casino Hotel & Spa in Atlantic City created a specialized group of male and female costumed beverage servers (“Borgata Babes”). The hotel implemented personal appearance standards (PAS), that required male and female workers to maintain fit physical features. In 2005, it implemented a new requirement that male and female Borgata Babes’ weight must not exceed their baseline weight established upon hiring, over 7%, barring medical reasons.
The Original Case
In 2008, twenty-two cocktail Borgata Babes brought suit against their employer alleging the corporate PAS constituted gender stereotyping and gender role discrimination in violation of the LAD. The Borgata Babes alleged that the PAS was, on its face, discriminatory and in violation of the LAD; 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. Specifically, some Borgata Babes alleged that they were subjected to multiple weigh-ins per day, or the threat of being weighed after lunch. One Borgata Babe alleged that she was required to wear a maternity costume well before she began showing physically that she was pregnant. Another plaintiff alleged she was suspended from work for failing to meet the Borgata’s weight standard despite her doctor’s note that post-surgery medication contributed to her weight gain.
Nevertheless, 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
The Appellate Decisions
On the first appeal, the Appellate Division ruled that some of the waitresses could go back down 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. Specifically, the court held that plaintiffs who claimed they were harassed over weight gained after pregnancy or because of a medical condition were entitled to a trial.
While the trial court initially signaled the intent to schedule trial, the hotel asked to renew its motion for summary judgment, which the trial court allowed. The trial court then again granted summary judgment to the defendants. However, in May of 2019, the Appellate Division reversed and held that the case may proceed to trial.
While the Appellate Division consistently held that the weight requirement was enforceable, the remaining claims proceeding to trial involve alleged inconsistent enforcement of the Personal Appearance Standards, specifically against employees who sought accommodations for medical reasons. The case is a reminder that while employers can legally implement personal appearance standards, employers must be careful that accommodations are properly granted. In addition, employers should ensure that personal appearance standards are not enforced arbitrarily, based on gender, or another protected characteristic.
For more information regarding this decision and best practices, please contact John C. Petrella, Esq., Chair of the Firm’s Employment Litigation Practice Group at firstname.lastname@example.org or Dina M. Mastellone, Esq., Chair of the Firm’s Human Resources Counseling & Compliance Practice Group, at email@example.com or 973-533-0777.