By: Christopher Lowe, Robert T. Szyba and Samuel Sverdlov
The New Jersey Appellate Division recently affirmed summary judgment for the defense on several claims in the widely-followed “Borgata Babes” case, reining in the plaintiffs’ attempt to expand the New Jersey Law Against Discrimination (“LAD”). The case was brought by 21 current and former female employees of the Borgata Casino Hotel & Spa in Atlantic City, NJ (“Borgata”), specifically hired to work as “Borgata Babes” — both men and women “entertainers who serve complimentary beverages to … casino customers.” Plaintiffs claimed that Borgata subjected them to illegal gender stereotyping, sexual harassment and hostile work environment and disparate treatment, by holding them to specific personal appearance standards (“PAS”), which, among other things allowed for no more than a 7% weight gain above their initial weigh-in. To maintain their appearance, the employees were given free Borgata spa and fitness center access, along with reimbursement for any outside gym memberships, nutritionists, and personal trainers. They were also provided an exclusive dressing room and additional paid time to change into costume and complete their grooming before their shifts.
On the plaintiffs’ appeal of summary judgment for the defense, the New Jersey Appellate Division concluded that “the LAD does not encompass allegations of discrimination based on weight, appearance, or sex appeal.” The Court was entirely unconvinced that the PAS and weight standard are actionable as sex discrimination under the LAD. Indeed, even looking to see how courts in other states addressed dress code challenges (such as casino bartenders in Nevada, flight attendants in California, New York, and Texas), the Appellate Division found that courts have historically considered “a reasonable dress or grooming code [to be] a proper management prerogative.” The Court thus declined to extend the LAD, and explicitly concluded that “there is no protected class based solely on one’s weight” as a means of challenging such policies. The Court further held that dress codes are permissible as long as they “are enforced evenhandedly between men and women, even though the specific requirements may differ.” Since “the PAS weight standard imposed the same standard for men as for women,” the Court found the provisions not facially discriminatory. The Court also found that the plaintiffs could not sustain a claim of disparate treatment associated with PAS because they offered no admissible evidence to show that they were treated differently than the male Borgata Babes.
The Court also rejected the plaintiffs’ attempt to use the continuing violation doctrine to include time-barred allegations in their claims, relying on the three factors for determining the doctrine’s application:
(i) subject matter — whether the violations constitute the same type of discrimination; (ii) frequency; and (iii) permanence — whether the nature of the violations should trigger an employee’s awareness of the need to assert her rights and whether the consequences of the act would continue even in the absence of a continuing intent to discriminate.
In light of these factors, the Court held that the implementation of the PAS in 2005 was a discrete act of which the plaintiffs were aware, were a continuation of prior standards governing appearance, and no new policies were adopted thereafter. Subsequent enforcement of the PAS did not constitute a continuing violation.
Reversing summary judgment on the plaintiffs’ hostile work environment claims, however, the Appellate Division found that the plaintiffs, whose lack of compliance with the PAS resulted from “documental medical conditions or post-pregnancy conditions, have presented a material dispute of fact regarding defendant’s application of the PAS weight standard resulting in harassment because of their gender.” The Court specifically looked to comments made by supervisors, co-workers, and customers to the plaintiffs regarding their weight, holding that these comments “were not discriminatory because of the weight per se, but because of a gender specific characteristic such as pregnancy or a medical condition such that the weight comments actually targeted women.” The Court also found that the defendant’s harassment prevention policy and hotline failed to address the claimed instances of harassment since supervisors allegedly did not respond to reports of harassment. The hostile work environment claims were remanded to the Superior Court.
Implications for Employers
This decision is of particular importance to employers with dress codes and appearance standards, providing a practical lesson on how such policies can be lawfully implemented, as well as a cautionary tale that a PAS does not give license to create a hostile work environment based on appearance. The Court also provided helpful guidance on how employers can defend against claims of a “continuing violation,” especially where attempts to string together discrete acts under a single policy are involved. If the nature of the disputed act is one that should “trigger an employee’s awareness of the need to assert her rights” then it is courts are more likely to consider this to be a discrete act.
As always, it is vital that policies relating to dress code and appearance be analyzed by counsel familiar with the nuances in this area of the law, with a focus on the terms of the policy itself, enforcement of the policy, as well as the interrelation of dress codes and appearance policies with reasonable accommodation policies and anti-harassment, anti-discrimination, and anti-retaliation policies.
For additional information or any questions you may have, please feel free to contact Christopher Lowe (firstname.lastname@example.org), a partner in the New York office, Robert T. Szyba (email@example.com), an associate in the New York office, or Samuel Sverdlov (firstname.lastname@example.org), a senior fellow in the New York office.