“There Are No Calories in Eye Candy”: New Jersey Appeals Court Weighs In On Borgata Babes Appearance Discrimination Case.

By: Nicholas Moneta

“She moves toward you like a movie star, . . . You forget your name. She kindly remembers it for you. You become the most important person in the room. And relax in the knowledge that there are no calories in eye candy.”[1] Twenty-two female cocktail servers (hereinafter “Plaintiffs” or “Servers”) brought legal action against their employer Borgata Hotel Casino and Spa (“Borgata”) in the matter of Schiavo v. Marina District Development Co.[2] in an attempt to expand the protections offered to employees under the New Jersey Law Against Discrimination[3] (“LAD”), as informed by Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e to 2000e-17. [4] Plaintiffs alleged among other claims, that they were forced to work in an atmosphere of sexual objectification and that they endured humiliating treatment through the enforcement of discriminatory standards based upon sexual and/or gender stereotypes.[5]

The weight standards at issue bound the servers from gaining more than seven percent of their body weight.[6] They argued that these policies affected the female employees only.[7] Between February 2005 and December 2010, twenty-five women and no men were disciplined for failing to comply with the weight standards.[8] Superior Court Judge Nelson Johnson reportedly stated that the standards would be found discriminatory only if the policy targeted female servers exclusively or punished a trait in one sex over the other.[9] The Court later held that Plaintiffs “failed to raise inferences of sex discrimination in the casino’s personal appearance policy requiring women servers to wear skimpy costumes and prohibiting all servers from gaining more than 7% body weight.”[10] The Court sent a clear message of “when your job title is ‘babe,’ you can reasonably expect your employer to have some input about your appearance.”[11]

Plaintiffs appealed, attempting once more to broaden the scope of the LAD.[12] The New Jersey Appellate Division upheld the lower Court’s ruling on September 17, 2015, allowing Borgata to continue mandating weight limits for its employees.[13] The New Jersey Appellate Division held “the LAD does not encompass allegations of discrimination based on weight, appearance, or sex appeal.”[14] The LAD specifically addresses employee appearances:

Nothing in the provisions of this section shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards . . . except that an employer shall allow an employee to appear, groom and dress consistent with the employee’s gender identity or expression.[15]

Looking outside of New Jersey case law, the Court marshaled a general principle of when an employer’s reasonable workplace appearance, grooming and dress standards comply with state or federal law prohibiting discrimination, even if they contain sex-specific language, the policies do not violate Title VII, and by extension, the LAD.[16]

The main legal issue of the appeal was whether appearance discrimination should be allowed. This specific type of discrimination generally is allowed, however there are a few exceptions. [17] For example, “if an employee gains weight because she becomes pregnant and the employer terminates her for not fitting into her uniform, the company would risk a pregnancy discrimination lawsuit.”[18] Indeed, Borgata is not the first employer to require employees to follow certain appearance and grooming standards as part of their employment agreements.[19] These types of appearance policies and practices are legal so long as they don’t discriminate against employees based on a characteristic protected under federal, state, or local law.[20]

All three judges on the New Jersey Appellate Division were set on excluding appearance and weight standards as being discriminatory under the LAD. Borgata’s vice president, Joe Corbo, who doubles as the hotel’s legal counsel, felt as if the September 17, 2015, ruling was a “significant victory” adding how “fair and reasonable” the hotel’s appearance standards are.[21] Plaintiffs’ counsel, Deborah Mains was extremely disappointed in the outcome and commented post-ruling that she has not decided whether to further appeal this case.[22] Although the Borgata Babes fought valiantly to change discrimination law, the rule still simply stands that “there is no protected class based solely on one’s weight.”[23]

[1] Schiavo v. Marina Dist. Dev. Co., No. ATL-L-2833-08, 2013 WL 4105183, at *1 (N.J. Super. Ct. Law Div. July 18, 2013) (emphasis added) (quoting an excerpt from a brochure recruiting candidates to work as “Borgata Babes” at the Borgata Hotel Casino and Spa in Atlantic City, New Jersey).

[2] Id.

[3] N.J. Stat. Ann. § 10:5 (West 2015).

[4] Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. § 2000e (West 2015).

[5] See Schiavo, 2013 WL 4105183, at *8.

[6] Susanna Kim, Casino Can Dictate Servers’ Weight and Appearance, Court Rules, abc news (Sept. 18, 2015, 12:57 PM), http://abcnews.go.com/Business/borgata-casino-dictate-servers-weight-appearance-court-rules/story?id=33857371.

[7] Paul Milo, Court upholds weight rules for ‘Borgata Babes’ report says, nj.com (Sept. 17, 2015, 5:56 PM), http://www.nj.com/atlantic/index.ssf/2015/09/court_upholds_weight_rules_for_borgata_babes_repor.html.

[8] Id.

[9] Id.

[10] Holly C. Frey, The Borgata Babes Case: The Weighty Matter of Appearance Standards, 21 Widener L. Rev. 95 (2014) (quoting No Sex Bias Found Against ‘Borgata Babes’; Court Says Weight Policy Lawful Under NJLAD, Lab. Rel. Wk. (BNA) No. 32, at 1512 (Aug. 7, 2013)).

[11] Id. (quoting Schiavo).

[12] See Schiavo v. Marina Dist. Dev. Co., No. A-5983-12T4, 2015 WL 5448726, at *1 (N.J. Super. Ct. App. Div. Sept. 17, 2015).

[13] See id. at *22.

[14] Id. at *1.

[15] Id. at *12 (quoting N.J. Stat. Ann. § 10:5-12(p)).

[16] Id. at *14.

[17] Jill Barbarino, Appearance Discrimination: What’s the Short and Tall of It?, New York Employment Law Letter, 18 No. 3 N.Y. Emp. L. Letter 4, (2011).

[18] Id.

[19] See, e,g., Baker v. Cal. Land Title Co., 349 F. Supp. 235, 237 (C.D. Cal. 1972); Fountain v. Safeway Stores, Inc., 555 F.2d 753, 754 (9th Cir. 1977); Carroll v. Talman Fed. Say. & Loan Ass’n of Chicago, 604 F.2d 1028, 1029-30 (7th Cir. 1979); Frank v. United Airlines, Inc., 216 F.3d 845, 847, 854 (9th Cir. 2000); Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1077 n.1 (9th Cir. 2004) [Jespersen II].

[20] Barbarino, supra note 17.

[21] Kim, supra note 6.

[22] Kim, supra note 6.

[23] See Schiavo, 2015 WL 5448726, at *11.

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