By: Mary Morandini
On September 17, 2015, the New Jersey Appellate Division upheld the Borgata’s personal appearance standards (“PAS”), holding that the policy did not violate New Jersey Law Against Discrimination (“LAD”) because the law does not encompass allegations of discrimination based on weight, appearance, or sex appeal. In short, the Borgata can discipline a group of employees, known as the BorgataBabes, for gaining weight, or otherwise failing to meet the other aesthetic requirements enumerated in the PAS. The BorgataBabes are a specialized group of cocktail servers dressed in costume which debuted with the Borgata Hotel, Casino & Spa in Atlantic City in 2003. The BorgataBabes were created to differentiate the Borgata from the Atlantic City competition by bringing the Las Vegas style to Atlantic City. The group was intended to represent the “fun, upscale, sensual, international image” of the Borgata brand.
The initial PAS policy from 2003 required the BorgataBabes’ weight, both men and women, be “proportional to height” but this provision was amended in 2005, which now requires employees to maintain a maximum weight within seven percent of their personal weight. The PAS policy further requires employees to adhere to strict grooming and appearance requirements. Women are expected to have a natural hourglass shape, while men should have a V-shape, and all BorgataBabes must be physically fit. If employees failed to meet any these standards, there was the threat of suspension for up to 90 days.
Notwithstanding the threat of being reprimanded for failing to comply with standards relating strictly to physical appearance, the complainants felt the PAS discriminated against women, that they were being treated as sex objects, and ultimately were not being treated equally compared to their male counterparts. While the court recognized the Borgata’s PAS were a rather archaic stereotype of male and female physiques, the LAD did not provide the kind of protection the female complainants were seeking. For a gender discrimination complaint to withstand dismissal the plaintiff(s) must prove, beyond a preponderance of evidence that he or she is (1) a member of a protected class; (2) qualified for and performed the essential functions of the job; (3) has suffered adverse employment action; and (4) others outside of the protected class did not suffer similar adverse employment action.
Unfortunately, the court found that discipline for non-compliance of the weight standard was equally applicable to both the male and female BorgataBabes. The evidence produced at trial additionally provided no support to the claim that the PAS imposed an unequal burden on one gender over the other. Thus, the PAS was not discriminatory against women and was a “reasonable dress and grooming code” considering the nature of the industry, as provided by the New Jersey statute.
There is one saving grace however, the Appellate Division reversed the lower court’s dismissal of the plaintiff’s hostile work environment claims. Although they were unable to prove the Borgata’s expectations on their appearance were discriminatory, these women may still have an opportunity to speak out about the pressures of being a BorgataBabe.
 Schiavo v. Marina District Development Co., 2015 N.J. Super. LEXIS 156, 4 (2015).
 The Borgata was the first casino to open in Atlantic City in over a decade. Id. at 5.
 See Michael H. Dell & Mary B. Rogers, The Curious Case of ‘Borgata Babes,’ Law360 (Oct. 23, 2015, 12:18 PM), https://www.law360.com/appellate/articles/715134/the-curious-case-of-borgata-babes-.
 See Schiavo, 2015 N.J. Super. LEXIS at 9 (“[T]he original requirement to ‘maintain approximately the same physical appearance’ as when hired.”). See also, Dell, supra note 3 (noting that weight was determined either on the date of hire for new employees, or in 2005 following amendment to the policy for current employees).
 See Schiavo, 2015 N.J. Super. LEXIS at 7 (including a healthy smile, being physically fit and various facial hair specifications for men).
 Dell, supra note 3.
 Schiavo, 2015 N.J. Super. LEXIS at 7 (meaning broad shoulders and a slim waist).
 Bryce Covert, Court Allows Casino to Punish Employees for Gaining Weight, ThinkProgress (Sept. 18, 2015, 10:50 AM), http://thinkprogress.org/economy/2015/09/18/3703065/borgata-babes-loss/.
 The complainants were twenty-one women who worked as BorgataBabes under the 2005 policy. Schiavo, 2015 N.J. Super. LEXIS at 10.
 See id. at 49 (“Defendant’s evidence reflected only twenty-five of 686 women, or 3%, were disciplined, and none of the forty-six men were disciplined.”).
 Id. at 19.
 Id. at 49 (refuting the fourth element for a sex discrimination case, men were subject to the same standards as the female complainants). The court also found that there was no protected class relating to weight. Id. at 30-1.
 See id. at 37 (finding that both male and female BorgataBabes were subject to the same weight standard).
 See id. at 31 (“Nothing in this provision shall affect the ability of an employer to require employees to adhere to reasonable workplace appearance, grooming and dress standards[.]”). See also, Dell, supra note (noting the impact of the courts holding is limited to the specific facts as relating to the Borgata and the casino industry).
 Schiavo, 2015 N.J. Super. LEXIS at 57-8.