Casino’s “BorgataBabes” Policy Survives Discrimination Scrutiny Under New Jersey’s Law

BorgataBabesCasino’s “BorgataBabes” Policy Survives

Like the federal government and many states, New Jersey has enacted laws seeking to ban discrimination in employment on the basis of race, creed, color, national origin, ancestry, age, marital status, affectional or sexual orientation, familial status, disability, nationality, sex, gender identity or expression.  See N.J.S.A. 10:5-4.  In enacting this law, New Jersey’s legislature stated its commitment to the State’s public interest of eliminating practices of discrimination in the workplace.  See N.J.S.A. 10:5-3.

In 2003, the casino world in Atlantic City changed with the opening of the Borgata, a Las Vegas styled hotel/casino.  The Borgata instituted a program called the “BorgataBabes,” which was a specialized group of costume beverage servers.   The BorgataBabes, which was open to both male and female employees, were subject to a strict personal appearance standards (“PAS”) that required them to maintain certain appearance standards, including weight standards.  The PAS was amended once in 2005 but has been unchanged since that time.  In 2009, 21 female current and former BorgataBabes sued on the grounds that the PAS violated New Jersey’s Law Against Discrimination (“LAD”)  thereby constituting unlawful discrimination on the basis of sex.   On September 17, 2015, the Superior Court of New Jersey’s appellate division issued an order in the case Schiavo, et al. v. Marina District Development Company, LLC, affirming the grant of summary judgment and finding that the PAS did not violate New Jersey’s LAD.

Case Background

As mentioned above, the Borgata opened in Atlantic City in 2003, becoming the City’s first Las Vegas-styled resort.  In connection with that opening, the Borgata began the “BorgataBabes” program which was a specialized group of costume beverage servers.  They were expected to comply with the Borgata’s “Five F’s;” that is, being “Fun, Friendly, Focused, Fresh and Fast.”  At the time of their selection, BorgataBabe candidates were advised of the PAS requirement, which required both males and females to be physically fit with their weight proportionate to their height.  The Borgata claimed that the PAS was designed to maximize its ability to maintain and preserve its public image.  The BorgataBabes were viewed as “entertainers who serve complimentary beverages to … casino customers” “similar to performance artists”.  In addition to working at the casino, they also appeared at special marketing events and the Borgata considered them to be “high profile entertainment positions [similar to] professional cheerleaders and models.”

In 2005 the Borgata amended the PAS so that it could be enforced in a more objective manner.  This modification instituted a requirement that BorgataBabes maintain the approximate same physical appearance as when they were first hired.  All BorgataBabes were to be weighed, which would establish a “baseline” weight which could not increase or decrease more than 7% during their employment.  At the time this modified PAS went into effect, all BorgataBabes signed documents agreeing to comply with its terms (although several of them wrote in that they were signing “under protest”).

The PAS did not provide a schedule for when BorgataBabes were to be weighed (other than the baseline weigh in).  Plaintiffs claimed that there were never periodic weigh-ins but rather, arbitrary ones in which a manager determined a BorgataBabes costume to be “ill fitting.”  If a Borgata Babe exceeded the weight limit allowance, they were provided a period for compliance or there would be consequences and discipline for non-compliance.  The PAS did provide, however, that an exception to the weight requirements would be recognized due to a “bona fide medical condition” or pregnancy.

Between 2005 and 2010, there were 686 female BorgataBabes of whom 25 were suspended for failure to comply with the weight standards.  During that same period, there were 46 male BorgataBabes but none of them were suspended for failing to comply with the weight standard.

In August 2008, the first complaint was filed in court challenging the PAS and alleging that its enforcement against women violated New Jersey’s LAD.  21 current and former female BorgataBabes eventually became plaintiffs in the case and alleged that the PAS weight standard subjected them to gender stereotyping and gender discrimination in violation of the LAD.  They alleged that the PAS’s weight standard was not equally applied to male BorgataBabes, claiming that the men either were not weighed or did not appear to be concerned with the PAS’s weight standard.  Several of the plaintiffs claimed that they knew of male BorgataBabes who they believed to have gained weight in violation of the PAS but who were not subjected to discipline.

The trial court granted the Borgata’s motion for summary judgment concluding that the PAS did not discriminate on the basis of gender and therefore did not violate New Jersey’s LAD.  The plaintiffs appealed that decision against them to New Jersey’s appellate division.

Appellate Analysis Upholding Borgata’s PAS

The appellate court began by recognizing the purpose of the LAD was to “unequivocally express [] a legislative intent to prohibit discrimination in all aspects of the employment relationship including hiring and firing, compensation, the terms and conditions of employment and retirement.” The Court continued by recognizing that its provisions needed to be interpreted “liberally” because of its remedial purpose, but that the LAD acknowledged “the authority of employers to manage their own businesses” and that it prevented “only unlawful discrimination against [protected] individuals ….”

In bringing a discrimination lawsuit, plaintiffs bore the burden of establishing a prima facie case showing that he or she was a victim of discrimination.  This requires proof that the plaintiff: “(1) is a member of a designated protected class; (2) who was qualified for and performing the essential functions of the job; (3) suffered termination or other adverse employment action; and (4) others not in the protected class did not suffer similar adverse employment actions.”  New Jersey has adopted the same analysis of disparate treatment as set forth in the U.S. Supreme Court’s decision, in McDonnell Douglas Corp. v. Green.  The burden is first on the plaintiff to establish a prima facie case of discrimination at which point the burden then shifts to the employer “to articulate some legitimate nondiscriminatory reason for its action.”  If the employer can meet its burden of showing a legitimate business reason for the adverse employment action, the burden then shifts back to the plaintiff to prove by a preponderance of the evidence that the employer’s purported “legitimate” reason was merely a “pretext for discrimination.”

The Court continued by recognizing that the LAD prohibits two types of discrimination: (1) on its face, i.e., a policy or practice that is expressly discriminatory; and (2) as applied, that is even if it is neutral on its face and not intended to be discriminatory, the criteria set forth in the policy results in a “disparate impact” on a person or group entitled to protection under the LAD.

One of the primary defenses raised by the Borgata in the case was that plaintiffs’ claims were barred by the statute of limitations in that they had been brought more than two years after the Borgata had implemented the PAS and its modified PAS in 2003 and 2005, respectively.  While this would have otherwise disposed of the plaintiffs’ claims, at least one plaintiff had been hired within the two years preceding the lawsuit and thus, the court found that her challenge to the PAS as being violative of the LAD was not time-barred.

In analyzing whether the Borgata’s PAS violated the LAD on its face, the Court recognized that New Jersey Courts had long “recognized that the appearance of a company’s employees may contribute greatly to the company’s image and success with the public and thus, that a reasonable dress and grooming code is a proper management prerogative.”  The Court also cautioned that there is no protected class under the LAD on the basis of one’s weight.  The Court further continued by recognizing that New Jersey’s LAD had a specific exemption that it would not affect “the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards not precluded by other provisions of state or federal law …”.  Although no New Jersey Court had specifically considered the challenge raised by the plaintiffs, there were a number of reported authorities from other jurisdictions that provided guidance to the Court’s analysis.  Upon reviewing these authorities, the New Jersey Court concluded that there appeared to be a general principal to be gleamed from these cases which was, “when an employer’s `reasonable workplace appearance, grooming and dress standards’ comply with state or federal prohibiting discrimination, even if they contain sex specific language, the policies do not violate … the LAD”.  In determining whether this was so in this case, the Court had to engage in a review of the fact sensitive issues raised by plaintiffs.

In reaching its conclusion that the PAS did not violate New Jersey’s LAD, the Court noted that it applied equally to both male and female BorgataBabes with both groups being subject to the 7% requirement.  The PAS also recognized an exception for pregnancy (i.e., a gender specific condition) as well as bona fide medical conditions.  The Court found that the PAS’s use of the employees own baseline weight of a mechanism for enforcement meant that it was not facially discriminatory.

The Court also rejected the plaintiffs’ claim that the PAS was unlawful in that it subjected female BorgataBabes to different enforcement/scrutiny than the male BorgataBabes.  The Court held that a simple statistical disparity in the rate at which female BorgataBabes were subject to discipline under the PAS was “insufficient to show the weight standard was facially discriminatory.”  The Court found that there was nothing in the record to show that the 7% weight standards would affect female employees more or less frequently than male BorgataBabes.  The Court further rejected plaintiffs’ argument that the different costumes that the BorgataBabes were required to wear was also discriminatory, finding that all BorgataBabes were required to wear costumes as a condition of employment, not just the female ones.  Further, given the specialized assignments of the BorgataBabes, the Borgata was justified in requiring them to wear different types of costumes from other casino employees and that there was nothing in the record to suggest that the hiring of BorgataBabes was restricted on the basis of gender.  Furthermore, there was no evidence that the female BorgataBabes had different assignments or earning ability solely because of their gender.

The Court continued by rejecting the plaintiffs’ contention that they were discriminated against when it came to the Borgata’s implementation and enforcement of the PAS.  The Court held that where there are grooming policies applicable to all employees, a plaintiff must provide admissible evidence showing that men were treated as if they were exempt from the rules.  The Court found that there was nothing in the record to suggest this.  In fact, all BorgataBabes, whether male or female, were weighed in accordance with the PAS and several men had been re-weighed after the establishment of their baseline weight.  The Court also concluded that the plaintiffs’ “opinions and/or beliefs” that men had gained weight but were not subjected to discipline was inadmissible evidence for purposes of avoiding summary judgment.

The Court concluded that the PAS, as written and enforced based on the evidence before it did not violate New Jersey’s LAD. Although not discussed in this article, the Court did reverse judgment against several of the plaintiffs who had brought hostile work environment claims claiming that they had been sexually harassed by coworkers, which conduct was largely unrelated to the PAS.  Those claims will presumably proceed at the trial court level.

Takeaway for Employers

The Schiavo decision is a reminder to New Jersey employers that while they can implement grooming and appearance standards for their employees, they should be cognizant of New Jersey’s LAD and ensure that their provisions are written and enforced in compliance with the strictures of the LAD.

Contributor:  James Kachmar, Shareholder | Weintraub Tobin