United States: Appellate Division Affirms Dismissal Of Most "Borgata Babes" Discrimination Claims

Last Updated: October 12 2015
Article by Michael H. Dell and Mary B. Rogers

In 2003, the Borgata Hotel-Casino began hiring "costumed beverage servers" known as "BorgataBabes." Borgata sought to have the BorgataBabes reflect "the fun, upscale, sensual, international image that is consistent with the Borgata brand." The Casino's offer letter to potential BorgataBabes explained that they were required to abide by Borgata's Personal Appearance Standard (the "PAS") to retain their positions. Men and women chosen as BorgataBabes contractually agreed to adhere to the PAS. Among other things, the PAS required the Borgata Babes to be "physically fit" with weight proportional to height. The PAS required female BorgataBabes to have a "natural hourglass shape," and male BorgataBabes to have a "natural 'V' shape with broad shoulders and a slim waist." The PAS also provided for other grooming and appearance guidelines, including makeup and facial hair maintenance.

After determining that the "weight proportional to height requirement" of the PAS was too difficult to enforce, Borgata revised the policy in 2005 to require BorgataBabes to maintain a maximum weight within 7% of their "personal weight" (which was determined at the time of hiring or the time when the revised policy went into effect). Borgata occasionally weighed the BorgataBabes to ensure that they were complying with this aspect of the PAS, and employees who violated the policy were subject to discipline. Borgata did, however, make accommodations for employees who became pregnant or had a "bona fide medical condition." Although the overwhelming majority of BorgataBabes were female, the PAS also applied to male BorgataBabes.

On August 20, 2008, Jacqueline Schiavo filed the first complaint challenging the PAS and its enforcement. Twenty other women, all current or former BorgataBabes, also filed various suits against Borgata, which the New Jersey Law Division consolidated into Schiavo's action. Collectively, the plaintiffs sued under the New Jersey Law Against Discrimination ("NJLAD"), claiming that the PAS was facially discriminatory against women, that the PAS weight standard imposed unlawful gender stereotypes, that Borgata enforced the PAS in a manner that resulted in gender bias sexual harassment, and that the PAS weight standard had a disparate impact on females. In addition, individual plaintiffs alleged individual acts of workplace discrimination and harassment.

As we previously wrote about here, the trial court granted summary judgment to Borgata on all of the plaintiffs' claims, ruling that the 2005 PAS imposed reasonable workplace appearance, grooming and dress standards. The trial court noted that: "Employers are permitted to ask employees to [][remain] attractive, especially, as here, when the employee was hired – in substantial part – because of their pleasing appearance. Borgata is also permitted – as it did here – to show a preference for employees who possess a sexually attractive appearance." The Court also determined that the PAS applied equally to male and female employees (even though no male BorgataBabes had been disciplined under the policy), and added that: "While the policy may advance a societal perception that fit people are more attractive that those who are overweight, that purported stereotype impacts both male and female employees and is not actionable under the LAD."

The plaintiffs then appealed to the New Jersey Appellate Division, claiming that the trial court engaged in inappropriate fact finding, misinterpreted the NJLAD, and improperly determined that the plaintiffs did not provide sufficient evidence for their claims.

The Appellate Division began its review by quickly dispatching the plaintiffs' claim that the modified PAS weight standard and other grooming requirements were facially discriminatory. The Appellate Division found that these claims were time-barred under the NJLAD, because the plaintiffs did not file their lawsuits within two years of implementation of the modified PAS.

Turning to the plaintiffs' claim that Borgata designed and enforced the PAS such that BorgataBabes endured gender stereotyping, the Court stated that as a general principle, where an employer's reasonable workplace appearance standards comply with state or federal discrimination law, they do not violate the NJLAD (even if those policies contain sex-specific language). The Appellate Division found that the PAS applied a 7% weight "baseline" to male and female BorgataBabes equally, and recognized pregnancy as a bona fide medical condition exempt from enforcement. It was careful to note, however, that the issue was a fact-specific one, and pointed out that "from its inception, an element of performance and a public appearance component was part of the described BorgataBabe position." Accordingly, it held: "We cannot read the [NJLAD] to bar as discriminatory an employer's appearance policy requiring an associate, representing a casino business to the public, must remain fit and within a stated weight range, such as required by the PAS."

The Appellate Division then quickly rejected the plaintiffs' next two theories, that Borgata discriminated against women when implementing and enforcing the PAS, and that the use of female costumes and the PAS weight standard resulted in a hostile work environment based on gender stereotyping. For both claims, the Appellate Division found that the plaintiffs failed to present sufficient evidence to survive summary judgment.

Finally, the Court turned to the individual claims of sexual harassment and discrimination. Unlike the plaintiffs' other claims, these were not based solely on the PAS and weight requirements "per se," but instead were grounded in the allegations that the plaintiffs suffered harassment "because of a gender specific characteristic such as pregnancy or a medical condition such that the weight comments actually targeted women." For example, one plaintiff claimed that she was weighed despite being pregnant, and was told it was "just in case you're getting fat and that's the real reason." The Appellate Division determined that for these claims, the plaintiffs provided sufficient evidence to survive summary judgment.

New Jersey employers may impose reasonable workplace appearance, grooming and dress standards as long as they are applied in a non-discriminatory manner and as long as they are consistent with the nature of the business. However, although the Appellate Division upheld Borgata's appearance policy as reasonable as a matter of law, the impact of its holding is limited by the Court's recognition of the unique facts of the case and that the appearance standards would likely not be implemented in most work places and for most positions.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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