NJ APPELLATE COURT HOLDS PATTERN OF DISCRIMINATORY APPEARANCE-BASED PRACTICES MAY BE SUFFICIENT FOR SEXUAL HARASSMENT HOSTILE WORK ENVIRONMENT CLAIM IN ONGOING “BORGATA BABES” LAWSUIT

The Appellate Division of the Superior Court of New Jersey published an opinion on May 20, 2019, in which it reversed an Atlantic County decision dismissing a Law Against Discrimination (LAD) claim brought by a group of employees against the Borgata Casino, Hotel, and Spa in Atlantic City.

The employees, who were all hired to work as servers for the “Borgata Babes” program, allege that Borgata engaged in disparate treatment and sexual harassment, among other LAD violations, through its implementation of personal appearance standards which focus primarily on employees’ weights. Enforcement of these personal appearance standards was done through occasional weigh-ins, which ensured employees did not go above a set weight range during their employment. The standards were imposed on women who were pregnant as well as on women who were undergoing medical treatments that caused weight gain.

This week’s decision comes after a decade of litigation in which the claims were initially dismissed by the trial court. Schiavo v. Marina Dist. Dev. Co., LLC, 2013 N.J. Super. Unpub. LEXIS 2093. That initial dismissal was reversed in 2015 when the Appellate Division held that the trial judge erred in finding the record insufficient for a showing of a prima facie claim of sexual harassment hostile work environment discrimination. Schiavo v. Marina Dist. Dev. Co., LLC, 442 N.J. Super. 346 (App. Div. 2015).

In the 2015 decision, the Appellate Division noted that although the personal appearance standards alone would most likely not constitute a LAD violation because the LAD does not cover allegations of discrimination based on weight, appearance, or sex appeal, the circumstances surrounding the enforcement of the standards may implicate the LAD. Id. at 390. The manner through which these standards were implemented functioned to create “a pattern of discriminatory comments toward women suffering medical conditions or returning from maternity leave.” Id. The Appellate Division reaffirmed this 2015 holding in this week’s decision as well.

Additionally, because the standards were enforced against women who were pregnant or recently gave birth as well as against women whose weight gain was caused by medical conditions related to pregnancy, the enforcement of the standards creates disparate treatment of women. In other words, the Appellate Division recognized a prima facie showing of harassment against these employees because of their gender and pregnancy in many of the complaints alleged.

Application of the LAD is very fact-sensitive and what is viewed as discrimination in one case may not be considered discrimination in another, as illustrated through the discrepancies in the trial court and Appellate Division’s opinions here. At Mashel Law LLC, we are well experienced in handling LAD claims. If you believe you have been unlawfully treated by an employer because of your race, sex, national origin, religion, or other qualifying factor, call the attorneys at Mashel Law (732) 536-6161 or fill out the contact form on this page for immediate help in assessing whether you have an actionable claim against your employer. At Mashel Law, LLC, located in Marlboro, New Jersey, we are dedicated to protecting the rights of employees.