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October 29, 2015Download PDF
The Borgata Casino Hotel & Spa in Atlantic City, NJ opened in 2003 and introduced us to the “BorgataBabes”—attractive male and female servers donned in form-fitting costumes. The BorgataBabes were intended to reflect the “fun, upscale, sensual, international image” of the Borgata brand and help bring the style of Las Vegas to NJ.
According to Borgata’s recruiting brochure, asking ARE YOU A BABE?, BorgataBabes are:
Part fashion model, part beverage server, part charming host and hostess. All impossibly lovely. The sensational BorgataBabes are the new ambassadors of hospitality representing our beautiful hotel casino and spa in Atlantic City. On a scale of 1 to 10, elevens all.
Eyes, hair, smile, costumes as close to absolute perfection as perfection gets. BorgataBabes do look fabulous, no question. But once you can breathe again, prepare to be taken to another level by the BorgataBabe attitude. The memory of their warm, inviting, upbeat personalities will remain with you long after the vision has faded from your dreams.
Since inception, BorgataBabes were held to strict personal appearance standards (PAS). The PAS required both male and female BorgataBabes to be physically fit and maintain a weight proportional with their height, along with various other appearance and grooming standards. All BorgataBabes contractually agreed to comply with the PAS at the time of hire.
In 2005, Borgata modified the PAS in an effort to have a more objective weight requirement. The modified standard provided that BorgataBabes had to stay within 7% of their baseline weight at all times. The “baseline weight” was established by weigh-ins in 2005, or at the time of hire if after 2005. Borgata’s policy recognized pregnancy as a bona fide medical condition exempt from enforcement of the weight policy. All BorgataBabes acknowledged in writing that they understood the modified PAS and that violation of the PAS would lead to termination.
A few years later, twenty-one women (former and present BorgataBabes) challenged Borgata’s adoption and application of the PAS, claiming various violations under the NJ Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq. Specifically, they claimed that the PAS, on its face, discriminated against women, the costumes and weight standard constituted discriminatory gender stereotyping, the weight standard had a disparate impact on women, and management’s enforcement of the PAS against women created a hostile work environment. According to the plaintiffs, male BorgataBabes were not subjected to periodic weigh-ins, in sharp contrast to their female counterparts, especially those returning from maternity leave.
The Law Division dismissed all of plaintiffs’ claims on summary judgment. The appeal in Schiavo v. Marina Dist. Dev. Co., No. A-5983-12T4 (App. Div. Sept. 17, 2014), followed. On appeal, the plaintiffs argued that the Law Division misapplied the LAD, failed to accept the plaintiffs’ proofs, and should not have dismissed any of their claims. The Appellate Division generally affirmed the motion judge, except for some of the plaintiffs’ hostile work environment claims.
The Appellate Division began by finding that all but one of the facial discrimination claims were time-barred. The clock started ticking on these claims either in 2005 when the PAS was modified, or at the time of hire for BorgataBabes hired after 2005. The Appellate Division also affirmed dismissal of most of the remaining claims as unsupported because the plaintiffs failed to set forth admissible evidence, as opposed to anecdotes and hearsay.
The Appellate Division relied on the “general principle” that it is acceptable for employers to have “reasonable workplace appearance and dress standards” that comply with federal and state discrimination laws, even if the standards contain gender-specific language. Borgata’s policy was neutral on its face as the same 7% rule applied to both male and female BorgataBabes, and Borgata’s policy recognized pregnancy as an exception to enforcement.
Borgata successfully argued that BorgataBabes are more than the average server—their jobs involve “an element of performance and a public appearance component.” And this case involved the “entertainment business,” where BorgataBabes’ costumes “may lend authenticity” to the Las Vegas atmosphere, which distinguished this case from others. In rejecting the plaintiffs’ discriminatory impact claim, the Appellate Division commented that Borgata’s “overemphasis on appearance, including weight . . . alone is not actionable as illegal discrimination under the LAD.”
Further, the Appellate Division explained that “not all sex-based differentiations are actionable.” We are not expected to “pretend that there are no physiological differences between men and women.” Despite recognizing that female costumes were “form fitting, skimpy, and reminiscent of a Law Vegas-themed casino” whereas the male costumes merely involved a fitted club shirt and slacks (which furthered an “archaic stereotype” of the genders), the Appellate Division found the costumes not actionable because all BorgataBabes, regardless of gender, were required to wear costumes.
Finally, the Appellate Division addressed the sexual harassment hostile work environment claims of individual plaintiffs, which generally alleged that management who were charged with enforcing the PAS engaged in discriminatory comments and treatment against women. There was sufficient proof that several plaintiffs suffered discrimination after pregnancies or female-specific medical conditions in the course of enforcing the PAS weight standard. For example, one plaintiff was forced to weigh-in twice during her first day back from maternity leave. Another plaintiff was told by management “women who have children should not come back to work because they get fat.” Another plaintiff, while pregnant, was accused of “just getting fat and that’s the real reason why you want to wear [the maternity costume].”
Given the gender-specific characteristics involved in these allegations (such as pregnancy), it was “obvious [that] similar comments were not directed toward men.” The Court found enough material factual disputes for these claims to survive summary judgment and, thus, reversed dismissal and remanded certain plaintiffs’ hostile work environment claims.
One takeaway from Schiavo is that reasonable workplace appearance and dress standards, which are administered in a nondiscriminatory way, are acceptable, even if they include gender-specific language. But New Jersey employers evaluating their own workplace appearance and dress standards should not take too much comfort in the upholding of Borgata’s PAS. Indeed, the Appellate Division was careful to note that its decision in Schiavo resulted from a fact-sensitive inquiry, which factored in a unique entertainment industry as well as the unique positions of BorgataBabes. That means that workplace standards similar to Borgata’s PAS may not be “reasonable” in another context.