Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

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

Author: Scarinci Hollenbeck, LLC

Date: September 28, 2015

Key Contacts

Back

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.

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

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
SPACs Are Back, What You Need to Know post image

SPACs Are Back, What You Need to Know

Special purpose acquisition companies (better known as SPACs) appear to be making a comeback. SPAC offerings for 2025 have already nearly surpassed last year’s totals, with additional transactions in the pipeline. SPACs last experienced a boom between 2020–2021, with approximately 600 U.S. companies raising a record $163 billion in 2021. Notable companies that went public […]

Author: Dan Brecher

Link to post with title - "SPACs Are Back, What You Need to Know"
Short Form Merger: Streamlining the Process for Businesses post image

Short Form Merger: Streamlining the Process for Businesses

Merging two companies is a complex legal and business transaction. A short form merger, in which an acquiring company merges with a subsidiary corporation, offers a more streamlined process. However, like all M&A transactions, it is important to understand the legal nuances and proper due diligence in mergers and acquisitions. What Is a Short Form […]

Author: Dan Brecher

Link to post with title - "Short Form Merger: Streamlining the Process for Businesses"
Tariff Response Options for Small Businesses Facing Financial Distress post image

Tariff Response Options for Small Businesses Facing Financial Distress

The Trump Administration’s new tariffs are having an oversized impact on small businesses, which already tend to operate on razor thin margins. Many businesses have been forced to raise prices, find new suppliers, lay off staff, and delay growth plans. For businesses facing even more dire financial circumstances, there are additional tariff response options, including […]

Author: Brian D. Spector

Link to post with title - "Tariff Response Options for Small Businesses Facing Financial Distress"
Common Causes of Partnership Disputes and How to Resolve Them post image

Common Causes of Partnership Disputes and How to Resolve Them

Business partnerships, much like marriages, function exceptionally well when partners are aligned but can become challenging when disagreements arise. Partnership disputes often stem from conflicts over business strategy, financial management, and unclear role definitions among partners. Understanding Business Partnership Conflicts Partnership conflicts place significant stress on businesses, making proactive measures essential. Partnerships should establish detailed […]

Author: Christopher D. Warren

Link to post with title - "Common Causes of Partnership Disputes and How to Resolve Them"
President Trump's Termination of Member Gwynne Wilcox post image

President Trump's Termination of Member Gwynne Wilcox

On January 28, 2025, the Trump Administration terminated Gwynne Wilcox from her position as a Member of the National Labor Relations Board (NLRB or the Board). Gwynne Wilcox, a union side lawyer for Levy Ratner, was confirmed to the Board for an original term in 2021 and confirmed again for a successive five-year term expiring […]

Author: Matthew F. Mimnaugh

Link to post with title - "President Trump's Termination of Member Gwynne Wilcox"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!