123 A.3d 272
N.J. Super. Ct. App. Div.2015Background
- Borgata created a costumed beverage-server program called "BorgataBabes"; employees auditioned, were fitted with sex-differentiated costumes, and contractually accepted a Personal Appearance Standard (PAS).
- In 2005 Borgata amended the PAS to add an objective weight rule: employees could not exceed their baseline hire weight by more than 7% (with medical and pregnancy exceptions); baseline weigh-ins occurred in Feb. 2005 for most plaintiffs.
- Twenty-one female current or former BorgataBabes sued, alleging the PAS (particularly the 7% weight rule and costume requirements) violated the NJ Law Against Discrimination (LAD) via facial discrimination, gender stereotyping, disparate treatment/impact, and hostile-work-environment sexual harassment.
- The trial court granted summary judgment for Borgata, finding the PAS were reasonable appearance standards under N.J.S.A. 10:5-12(p) and plaintiffs lacked admissible proof of disparate treatment; plaintiffs appealed.
- The Appellate Division held facial challenges to the PAS were mostly time-barred or unsupported and that LAD does not protect against discrimination based solely on weight/appearance; but it found triable issues as to hostile-work-environment claims for certain women disciplined after pregnancy or for medical conditions and remanded those claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of facial challenge to PAS | PAS adoption and baseline weigh-ins are ongoing but continuing-violation tolling applies | PAS adoption and baseline weigh-ins were discrete acts; statute of limitations ran from adoption/hire | Facial challenges by most plaintiffs are time-barred; only McDonnell (hired after PAS) timely challenged it |
| Lawfulness of weight and costume standards under LAD | PAS enforces gender stereotypes and imposes unequal burdens on women | PAS are reasonable appearance/grooming standards permissible under N.J.S.A. 10:5-12(p); neutral on its face (7% applies to both sexes) | PAS weight rule and sex-differentiated costumes are facially neutral and not actionable as a matter of law on this record |
| Disparate treatment / enforcement | Plaintiffs observed or were told men were not weighed or disciplined, showing unequal enforcement | Documentary evidence shows baseline weigh-ins for men and women; plaintiffs' anecdotes are inadmissible/insufficient | Plaintiffs failed to produce competent evidence of disparate enforcement; summary judgment proper on disparate-treatment claims |
| Hostile-work-environment / gender stereotyping harassment | Enforcement of PAS (and supervisors' comments) targeted women, especially postpartum or with medical conditions, creating a hostile environment | Discipline resulted from weight noncompliance, not sex; defenses include accommodation policies and anti-harassment procedures | Triable issues exist for certain plaintiffs who presented evidence of sex-based, harassing treatment tied to pregnancy/medical conditions; summary judgment reversed as to those claims and remanded |
Key Cases Cited
- Price Waterhouse v. Hopkins, 490 U.S. 228 (gender stereotyping is actionable sex discrimination)
- Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587 (hostile-work-environment test under LAD)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (disparate-treatment burden-shifting framework)
- Jespersen v. Harrah's Operating Co., 444 F.3d 1104 (grooming standards differentiating sexes not necessarily actionable)
- Frank v. United Airlines, Inc., 216 F.3d 845 (sex-differentiated weight rules can be facially discriminatory)
- Bellissimo v. Westinghouse Elec. Corp., 764 F.2d 175 (dress codes permissible if even-handed)
- Aguas v. State, 220 N.J. 494 (employer anti-harassment policy and negligence framework)