NJ Appeals Court: Borgata Babes Weight Standard Doesn’t Violate NJLAD

September 28, 2015
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The Appellate Division recently ruled that the Borgata Casino’s appearance policy for their employees – known as the Borgata Babes – which includes a strict weight standard, does not violate the New Jersey Law Against Discrimination (NJLAD). However, it did find that several Borgata Babes may be able to prove that they were sexually harassed after gaining weight due to pregnancy or illness.

The Facts of the Case

Twenty-one current or former Borgata Babes of Marina District Development Company, LLC, operating as the Borgata Casino Hotel & Spa, filed suit against the casino alleging violations of the New Jersey Law Against Discrimination (NJLAD). The suit specifically maintained that the defendant’s adoption and application of personal appearance standards (the PAS) subjected them to illegal gender stereotyping and sexual harassment, among other claims. The PAS required male and female Borgata Babes, who served cocktails in scantily clad costumes, to be physically fit, with their weight proportionate to height, and display a clean, healthy smile. Barring medical reasons or pregnancy, Borgata Babes could not increase their baseline weight, as established when hired, by more than seven percent. The plaintiffs challenged the PAS’s weight standard as gender stereotyping and gender role discrimination in violation of the NJLAD. Further, they alleged the defendant’s sexual harassment and gender stereotyping created a hostile work environment. The trial court held that the provisions of the challenged PAS, to which plaintiffs specifically consented to abide when accepting employment in the Borgata Babes program, were reasonable in light of casino industry standards and customer expectations. Therefore, the PAS requirements were permitted by N.J.S.A. 10:5-12(p), a provision allowing an employer to establish reasonable employee appearance standards.

 The Court’s Decision

The Appellate Division held that the NJLAD does not encompass allegations of discrimination based on weight, appearance, or sex appeal. However, it also found that several plaintiffs may be able to make a prima facie claim of sexual harassment hostile work environment discrimination based on harassment linked to weight gain caused by a medical condition or pregnancy. “We do not deny the PAS costume and physical fitness standards imposed what many would label an ‘archaic stereotype’ of male and female employees,” Judge Marie Lihotz explained. “However … actionable conduct results when the stereotypes are shown to be accompanied by a burden on one sex and not the other or are otherwise used to interfere with employment opportunities of the discriminated group.” In reaching its decision, the appeals court acknowledged that businesses are entitled to enact workplace policies governing the appearance of their employees. “A general principle gleaned from the cited authorities is: When an employer’s ‘reasonable workplace appearance, grooming and dress standards’ comply with state and federal law prohibiting discrimination, even if they contain sex-specific language, the policies do not violate Title VII, and by extension, the LAD,” Judge Lihotz said. The Appellate Division, however, did not dismiss all of the claims. It left intact claims by 11 of the plaintiffs that alleged that they were harassed after gaining weight due to illness or pregnancy. “Some plaintiffs have alleged facts sufficient to demonstrate that the PAS weight standards were enforced in a harassing manner against women because of their gender, creating a hostile work environment,” Judge Lihotz stated.