Jacqueline Schiavo v. Marina District Development , 442 N.J. Super. 346 ( 2015 )


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  •                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5983-12T4
    JACQUELINE SCHIAVO, ZORAYMA
    RIVERA, KIMBERLY JOHNSON,             APPROVED FOR PUBLICATION
    PATRICIA TAYLOR, NOELIA LOPEZ,
    CINDY NELSON, LATOYA WILSON,             September 17, 2015
    AMY ASKINS, BRANDI JOHNSON,
    TYRIA WILLIAMS, TARA KENNELLY,           APPELLATE DIVISION
    AIMEE BARRELLA, JACQUELYN
    MCDONNELL, TERRI ESTRADA,
    MELISSA WERTHMANN, DANIELLE
    LEONARDIS, MORTA VAISYTE,
    MARCELLA BOOKER, WENDY GARCIA,
    KELLY HIGBEE, and TANIA NOUEL,
    Plaintiffs-Appellants,
    and
    LATESHA STEWART, MISTY GALE,
    ANDREA CIMINO, NANCY CARFAGNO,
    NATASHA BUCCERONI, and CAROL
    COHEN,
    Plaintiffs,
    v.
    MARINA DISTRICT DEVELOPMENT
    COMPANY, LLC, d/b/a BORGATA
    CASINO HOTEL & SPA,
    Defendant-Respondent.
    _______________________________
    Argued February 23, 2015 - Decided September 17, 2015
    Before Judges Lihotz, Espinosa and St. John.
    On appeal from Superior Court of New Jersey,
    Law Division, Atlantic County, Docket No. L-
    2833-08.
    Deborah L. Mains argued the cause for
    appellants   (Costello    &   Mains,  P.C.,
    attorneys; Ms. Mains, on the briefs).
    René M. Johnson and Russell Lichtenstein
    argued the cause for respondent (Morgan,
    Lewis & Bockius LLP, and Cooper Levenson
    April    Niedelman    &   Wagenheim,    P.A.,
    attorneys;    Ms.   Johnson,   Michelle    S.
    Silverman, Mr. Lichtenstein and Gerard W.
    Quinn, on the brief).
    Nancy E. Smith argued the cause for amicus
    curiae New Jersey Association for Justice
    (Smith Mullin, P.C., attorneys; Ms. Smith,
    on the brief).
    Angelica M. Cesario argued the cause for
    amicus curiae National Employment Lawyers
    Association of New Jersey (The Dwyer Law
    Firm, LLC, attorneys; Andrew Dwyer, of
    counsel and on the brief; Ms. Cesario, on
    the brief).
    The opinion of the court was delivered by
    LIHOTZ, P.J.A.D.
    Plaintiffs,     twenty-one    women    who   are    present    or    former
    employees of defendant Marina District Development Company, LLC,
    operating as the Borgata Casino Hotel & Spa, appeal from the
    summary    judgment     dismissal     of     their       complaint    alleging
    violations of the New Jersey Law Against Discrimination (LAD),
    N.J.S.A. 10:5-1 to -49, as informed by Title VII of the Civil
    Rights Act of 1964 (Title VII), 42 U.S.C.A. §§ 2000e to 2000e-
    17.   Plaintiffs allege defendant's adoption and application of
    personal   appearance     standards       (the   PAS)    subjected    them       to
    2                                   A-5983-12T4
    illegal     gender      stereotyping,           sexual    harassment,          disparate
    treatment, disparate impact, and as to some plaintiffs, resulted
    in adverse employment actions.
    The motion judge found the provisions of the challenged
    PAS, to which plaintiffs specifically consented to abide when
    accepting    employment          in    defendant's       program       known       as     "the
    BorgataBabes,"       were    reasonable         in    light    of    casino        industry
    standards    and     customer          expectations.           Therefore,          the     PAS
    requirements were permitted by N.J.S.A. 10:5-12(p), a provision
    allowing an employer to establish reasonable employee appearance
    standards.         Further,           the   judge     rejected        as     unsupported
    plaintiffs' assertions of disparate treatment and enforcement
    between male and female BorgataBabes.                  Accordingly, he concluded
    plaintiffs failed to sustain the alleged LAD violations.                                   The
    judge   granted    defendant's          motions      against    each      plaintiff        for
    summary judgment and dismissed all claims.
    On    appeal,        plaintiffs           argue        the         motion         judge
    inappropriately engaged in factfinding.                   Further, they challenge
    his    interpretation       of    N.J.S.A.      10:5-12(p),         and    maintain        the
    evidence was sufficient to allow a jury to conclude plaintiffs
    were    victims    of   gender        stereotyping,      sexual      harassment,           and
    disparate impact in contravention of the LAD.                              Defendant not
    only refutes these arguments, requesting we affirm the motion
    3                                      A-5983-12T4
    judge's determinations, but also argues plaintiffs' claims are
    barred by the statute of limitations or, otherwise, precluded by
    laches and estoppel.
    Amici, the National Employment Lawyers Association of New
    Jersey   (NELA)    and     the   New   Jersey     Association    for     Justice
    (NJAFJ), concur with plaintiffs' position summary judgment was
    prematurely granted.         Primarily raising the same arguments as
    proffered by plaintiffs, NELA and NJAFJ argue the PAS imposed
    unfair and discriminatory grooming standards on female beverage
    servers in violation of the LAD by mandating females conform to
    "stereotypical images of femininity . . . to retain their jobs."
    Following our review, we affirm in part and reverse in
    part.    We have considered plaintiffs' claims and conclude all
    facial discrimination challenges to the PAS are time-barred or
    unsupported.       We    also    conclude   the   LAD   does    not    encompass
    allegations of discrimination based on weight, appearance, or
    sex appeal.       However, we determine the motion judge erred in
    concluding the record was insufficient to present a prima facie
    claim    of    sexual       harassment      hostile      work     environment
    discrimination.         Certain plaintiffs, whose lack of compliance
    resulted from documented medical conditions or post-pregnancy
    conditions, have presented a material dispute of facts regarding
    defendant's application of the PAS weight standard resulting in
    4                                A-5983-12T4
    harassment because of their gender.              As to those claims, summary
    judgment is reversed and the matter remanded.                    As to all other
    claims, for the reasons discussed in our opinion, we affirm.
    I.
    In   order    to   provide     context    to    the     claims    raised    in
    plaintiffs'     complaint,       we   must     provide    an    overview    of    the
    BorgataBabes program and the challenged PAS, as amended in 2005.
    Thereafter, we generally identify the facts asserted to support
    the various LAD claims, examining together similar allegations
    of groups of plaintiffs.          In our legal discussion, we recite the
    standards guiding our review, including the requisites of the
    LAD and, as appropriate, federal jurisprudence.                         Finally, we
    apply these principles to the facts presented in the record.
    A.
    "The market in Atlantic City changed forever in 2003 with
    the opening of the Borgata, the city's first Las Vegas[-]style
    resort.     The 2,000-room facility was the first casino to open in
    over   a    decade    and   it   quickly      became     the   largest     grossing
    property in the city."           A Brief History of the Casino Control
    Commission,         St.     of    N.J.        Casino     Control        Commission,
    http://www.nj.gov/casinos/about/history/ (last visited Aug. 30,
    2015).      Defendant's business decision to differentiate itself
    from the existing Atlantic City casinos included the creation of
    5                                  A-5983-12T4
    the   "BorgataBabes,"   a   specialized   group   of   costumed   beverage
    servers.1   The BorgataBabes reflected "the fun, upscale, sensual,
    international image that is consistent with the Borgata brand"
    bringing "Las Vegas[-]style to Atlantic City."            All Babes were
    expected to comply with the "Five Fs": "Fun, Friendly, Focused,
    Fresh, and Fast."
    Defendant's recruiting brochure described its image of the
    BorgataBabes this way:
    They're beautiful.   They're charming.         And
    they're bringing drinks.
    She moves toward you like a movie star, her
    smile melting the ice in your bourbon and
    water.   His ice blue eyes set the olive in
    your friend's martini spinning.    You forget
    your own 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.
    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
    1
    The parties agree all BorgataBabes were costumed beverage
    servers,   but  not   all  costumed   beverage  servers   were
    BorgataBabes.
    6                              A-5983-12T4
    attitude.     The memory of their warm,
    inviting, upbeat personalities will remain
    with you long after the vision has faded
    from your dreams.
    ARE YOU A BABE?
    Of   the   more   than    4000    male    and    female    applicants         for
    approximately 200 placements, the final candidates underwent two
    rigorous interviews, and a twenty-minute audition in-costume.
    The   audition    notification,        sent    to     those   who    were      chosen
    following the interviews, made clear "[p]ersonal appearance in
    costume" was one evaluative criteria and the audition required
    "performing" mock customer scenarios.                  Chosen candidates were
    also advised of the PAS requirements, which required male and
    female Babes be physically fit, with their weight proportionate
    to    height,    and    display   a    clean,       healthy     smile.         Female
    BorgataBabes were to have a natural hourglass shape; males were
    to have a natural "V" shape with broad shoulders and a slim
    waist.     Women were to have hair that was clean and naturally
    styled,    and   tasteful,     professional         makeup    that   complimented
    their facial features.          Men were to be either clean shaven or
    have neatly trimmed and sculpted facial hair.                 BorgataBabes were
    to deliver excellent customer service and create a feeling of
    "upscale    classiness,        sensuality,      and     confidence       to      build
    customer loyalty."       Defendant maintained the PAS was designed to
    7                                     A-5983-12T4
    maximize     its    ability        to    maintain            and       preserve    the   image
    defendant seeks to project to the public.
    The    men    and    women    chosen         as       BorgataBabes       contractually
    agreed to adhere to these strict personal appearance and conduct
    standards.         The    final    candidates           were       sent    a   notice,   which
    attached the PAS, recited the terms of engagement, and stated:
    "During     your   employment,          you   must      maintain          approximately     the
    same physical appearance in the assigned costume.                                    You must
    appear to be comfortable while wearing the assigned costume for
    which you were fitted."
    Defendant      viewed       the    BorgataBabes              as     "entertainers     who
    serve    complimentary       beverages          to      .    .     .    casino     customers,"
    "similar to performance artists," who would act as entertainers
    and ambassadors of the Borgata's "stylish brand of hospitality."
    BorgataBabes were required not only to serve drinks to customers
    on the casino floor, but also, on an as-needed basis, would
    represent the Borgata and appear at special marketing events; be
    photographed in advertising; perform at player promotions; make
    radio,    television,       and     media       appearances;              attend    restaurant
    parties, parades, and designated charity and community events.
    Defendant          considered           the          BorgataBabes                "high-profile
    entertainment positions [similar to] professional cheerleaders
    and   models   —    careers       which       require        a     certain     appearance    to
    8                                      A-5983-12T4
    portray    a    certain       image    to    the     public."      Starting         in   2004,
    BorgataBabes         could    voluntarily          participate     in    the    "Babes       of
    Borgata        Calendar,"        a      marketing            publication        containing
    photographs          of      twelve         female       BorgataBabes,          who       were
    provocatively clad and assumed sexually suggestive poses.
    In keeping with its objective to create a Las Vegas-style
    casino     image     and     atmosphere,       employees      hired     as    BorgataBabes
    wore distinctive, custom-fitted costumes, designed by Zac Posen.
    All   Babes      were      fitted     with     costumes       issued     by    defendant's
    wardrobe       department.            Unlike       other     employees,       BorgataBabes
    enjoyed the use of the "Babe Lounge," which was a "private,
    Hollywood-style dressing room"; an extra forty-five minutes of
    paid time to change into costume and complete their personal
    grooming; photo opportunities; gratuitous spa and fitness center
    access; and reimbursement for gym memberships, nutritionists,
    and personal trainers.
    In      late    2004,    defendant        sought       to   modify      the     PAS    to
    interpose a compliance standard which defendant believed would
    allow    it    "to    enforce    the     PAS       in   an   objective       manner."        On
    February 18, 2005, defendant announced this PAS "clarification"
    to the original requirement to "maintain approximately the same
    physical       appearance"      as     when    hired.         Specifically,         the     PAS
    change sought to elucidate the "weight proportioned to height"
    9                                     A-5983-12T4
    standard.      Under     the    modified         PAS,   barring    medical       reasons,
    BorgataBabes     could       not   increase        their       baseline       weight,     as
    established    when     hired,     by   more       than    7%    (weight       standard).
    "[Defendant]    selected        the   7%    standard       because      it     reasonably
    approximated a change of one clothing size and because it was
    consistent     with    the     scientific         definition      of      a    clinically
    significant weight gain."2
    Twenty of the twenty-one plaintiffs worked for defendant
    prior to the issuance of the clarifying PAS.3                      In February 2005,
    all BorgataBabes were weighed to establish a baseline.                           Each of
    the plaintiffs executed the modified PAS, which included the new
    weight    standard     and     stated   non-compliance           with     the    standard
    would result in termination.            On the document, immediately above
    each   plaintiff's     signature,          appears      this    statement,       in     bold
    capital    letters:     "I     read   and    fully      understand        that    costume
    requirements, personal appearance and weight standard[,] and the
    2
    A "clinically meaningful" weight loss range is at least
    five percent.   See Susan Z. Yanovski, M.D. & Jack A. Yanovski,
    M.D., Ph.D., "Long-Term Drug Treatment for Obesity: A Systematic
    & Clinical Review," 311 J. Am. Med. Assoc., 74-86 (2014),
    available at http://jama.jamanetwork.com/article.aspx?articleid
    =1774038.
    3
    All plaintiffs but Tyria Williams and Jacquelyn McDonnell
    were working as BorgataBabes on February 18, 2005. Williams was
    employed by defendant when the modified PAS was adopted and
    transferred to and was hired as a BorgataBabe on June 13, 2006.
    McDonnell was hired on December 3, 2007.
    10                                   A-5983-12T4
    personal     grooming     standards,          as        set   forth       herein,      are
    expectations and ongoing requirements for all costumed beverage
    servers."     Several plaintiffs executed the modified PAS adding
    the words "under protest."          Many testified they believed failure
    to accept the PAS would evoke termination.
    The PAS did not provide a fixed schedule for weigh-ins,
    such as the first of each month or every quarter.                                Rather,
    weigh-ins were "periodic," to occur "including, but not limited
    to"   when   a     BorgataBabe    "requires         a    costume    size      change    or
    whenever     he/she   returns     from   any       leave      of   absence."          Other
    weigh-ins were arbitrary and occurred when managers from the
    beverage     and    talent   departments           concluded        a    BorgataBabe's
    costume    was     ill-fitting.      The      PAS       explained       the   procedures
    followed when an associate exceeded the weight limit, allowing a
    period for compliance, and detailed consequences and discipline
    for non-compliance.       The PAS also explained that employees could
    request    exceptions    from     enforcement           because    of    a    "bona   fide
    medical condition" or pregnancy.4
    Much of the deposition testimony of defendant's management
    employees was devoted to the enforcement of the weight standard
    4
    For those providing a bona fide medical condition or proof
    of pregnancy, accommodations such as adjustment of the baseline
    weight, allowance of additional time to comply with the
    standard, and medical leave.
    11                                      A-5983-12T4
    in the PAS.    Between February 2005 and December 2010, stipulated
    by   all   parties    as     the    relevant      time    period   for   review,      686
    female and 46 male associates were subject to the PAS, of which
    25 women and no men were suspended for failure to comply with
    the weight standard.5
    B.
    On   August    20,     2008,       Jacqueline      Schiavo   filed    the    first
    complaint    challenging           the    PAS    and     alleged   its     enforcement
    against    women     as    violative       of    the    LAD.   Subsequently        filed
    complaints    by     other    plaintiffs         were    consolidated      by   the   Law
    Division under the first filed docket number.6
    5
    Latesha Stewart was the only associate terminated for
    violation of the PAS.       She filed a separate action from
    plaintiffs' action, which was settled.       Stewart has not
    participated in this appeal.
    6
    Following     Schiavo's    filing,    substantially  similar
    complaints were filed as follows: Patricia Taylor on September
    10, 2008;     Kimberly Johnson on September 19, 2008; Zorayma
    Rivera on September 19, 2008; Noelia Lopez, Cindy Nelson, Latoya
    Wilson, Amy Askins, and Brandi Johnson on January 8, 2009;
    Williams joined Lopez, Nelson, Wilson, Askins, and B. Johnson in
    an amended complaint filed on January 20, 2009; and Tara
    Kennelly, Andrea Cimino, Aimee Barrella, Jacquelyn McDonnell,
    Misty   Gale,    Terri   Estrada,   Melissa   Werthmann, Danielle
    Leonardis, Morta Vaisyte, Marcella Booker, Wendy Garcia, Carol
    Cohen, Kelly Higbee, Nancy Carfagno, Natasha Bucceroni, and
    Tania Nouel on September 22, 2009. Various orders consolidated
    these matters under the lead docket number of Schiavo's
    complaint.    Further, the consolidated first amended complaint
    eliminated several of these plaintiffs.
    12                                  A-5983-12T4
    Collectively, plaintiffs object to the PAS weight standard
    as    gender     stereotyping     and    gender       role    discrimination     in
    violation of the LAD.           Further, they allege defendant's sexual
    harassment       and   gender   stereotyping       created      a   hostile     work
    environment.       Individual plaintiffs allege facts asserting LAD
    violations arising from defendant's administration of the weight
    standard, maintaining defendant engaged in harassing, sexually
    suggestive, and gender biased conduct.                   The underlying facts
    experienced by each plaintiff are set forth in individual counts
    of the complaint.
    Generally, each of these nine plaintiffs were suspended for
    different periods when defendant determined each exceeded the 7%
    weight    gain    limit:    Askins,    Garcia,    Schiavo,     Vaisyte,   Higbee,
    Taylor, Rivera, Lopez, and Nelson.            Askins, Garcia, Schiavo, and
    Vaisyte   were     suspended,    but    thereafter      complied    and   remained
    employed with defendant as of June 2012.                In lieu of termination
    following non-compliance with the PAS weight standard, Higbee
    and   Taylor      chose    to   transfer     to   a     non-PAS     position     and
    ultimately separated from employment within a year of transfer.
    Rivera    and      Lopez     suffered    documented          medical   conditions
    affecting      weight      control.      Nelson       resigned      following    an
    inability to meet the PAS weight standard following a pregnancy.
    13                                A-5983-12T4
    The    remaining         plaintiffs          were    never     suspended        for       non-
    compliance        with     the     PAS.            Barrella      was    given    a     medical
    allowance.          Booker      and    B.    Johnson       experienced     post-pregnancy
    weight      gain.         Booker      returned        to     compliance,        but    Johnson
    resigned when notified she remained out of compliance one-year
    after her child was born.                   McDonnell, Werthmann, and Leonardis
    were found to be non-compliant at times, but each successfully
    returned     to     the   designated          weight       range,    without     suspension.
    Estrada, K. Johnson, Kennelly, Nouel, Williams, and Wilson at
    all times met the PAS weight standard.
    In    addition       to    the        gender     stereotyping        and    harassment
    claims,     plaintiffs          allege       the     PAS    weight      standard      was        not
    equally applied to male BorgataBabes.                            Plaintiffs' allegations
    include statements told to them by men who were not weighed or
    who   purchased      a    black       shirt    or     pants      similar   to    their          non-
    descript     outfit       to    avoid       requesting       a    new   costume.            A   few
    plaintiffs knew or dated males who were unconcerned with the PAS
    weight standard and others testified they saw male bartenders
    who they felt gained weight.
    Defendant admits no male BorgataBabe was suspended for non-
    compliance with the PAS weight standard.                             The record contains
    information       regarding        one      male     BorgataBabe        disciplined             when
    found not wearing the issued costume.                        Defendant also produced a
    14                                      A-5983-12T4
    chart, summarizing the weighing of male associates, recording
    baseline weights of forty-three men in February 2005, or their
    date of hire.    The chart also records five male Babes who were
    reweighed prior to 2008, when this action originated.
    The summary judgment record also includes expert reports
    submitted by plaintiffs and defendant.                Dr. Christopher Erath,
    an economist with a specialized interest in labor economics and
    econometrics, opined on behalf of defendant "that application of
    conventional    statistical      standards           and     tests   yields     no
    statistical evidence consistent with plaintiffs' allegation that
    the PAS had a disparate impact upon female Costumed Associates."
    Plaintiffs'    expert   Dr.   Alan      J.   Salzberg,       an   economist    and
    statistician,   suggested,      given     the    small     percentage    of   male
    BorgataBabes,    the     tests     performed          by     Erath    were     not
    statistically meaningful.
    II.
    We recite the standards guiding our review of a decision
    granting summary judgment.        Further, we provide an overview of
    the legal principles implicated by the issues raised in this
    appeal.
    A.
    "An   appellate     court    reviews        an   order    granting   summary
    judgment in accordance with the same standard as the motion
    15                                  A-5983-12T4
    judge."        Bhagat v. Bhagat, 
    217 N.J. 22
    , 38 (2014).                              We "must
    review      the      competent      evidential        materials         submitted         by   the
    parties to identify whether there are genuine issues of material
    fact    and,      if    not,    whether       the    moving      party       is    entitled    to
    summary judgment as a matter of law."                          
    Ibid. See also R.
    4:46-
    2(c).
    We    consider         all     facts    in     a    light       most       favorable     to
    plaintiffs, the non-movants, Robinson v. Vivirito, 
    217 N.J. 199
    ,
    203 (2014), keeping in mind "[a]n issue of fact is genuine only
    if, considering the burden of persuasion at trial, the evidence
    submitted       by     the     parties    on    the       motion,      together       with     all
    legitimate inferences therefrom favoring the non-moving party,
    would require submission of the issue to the trier of fact."                                    R.
    4:46-2(c).         "The practical effect of this rule is that neither
    the motion court nor an appellate court can ignore the elements
    of the cause of action or the evidential standard governing the
    cause of action."             
    Bhagat, supra
    , 217 N.J. at 38.
    Since the grant of summary judgment calls for a review of
    the    "trial     court's       interpretation            of   the     law    and    the   legal
    consequences           that    flow     from    established            facts,"      the    trial
    court's decision is "not entitled to any special deference," and
    is subject to de novo review.                       Manalapan Realty, L.P. v. Twp.
    Comm. of Manalapan, 
    140 N.J. 366
    , 378 (1995).
    16                                      A-5983-12T4
    B.
    We recognize the "major public policy . . . enshrined in
    the   LAD,"    Alexander    v.    Seton      Hall   Univ.,    
    204 N.J. 219
    ,   227
    (2010), which proclaims all individuals
    shall   have   the  opportunity   to  obtain
    employment . . . without discrimination
    because of race, creed, color, national
    origin,   ancestry,  age,   marital  status,
    affectional or sexual orientation, familial
    status, disability, nationality, sex, gender
    identity or expression . . . , subject only
    to conditions and limitations applicable
    alike to all persons.    This opportunity is
    recognized as and declared to be a civil
    right.
    [N.J.S.A. 10:5-4.]
    See also N.J.S.A. 10:5-3 (stating Legislature's commitment of
    state's       public     interest            to     eliminate       practices         of
    discrimination).
    "Without     doubt,        the     LAD      'unequivocally       expresses        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.'"       
    Alexander, supra
    , 204 N.J. at 227-28 (quoting
    Nini v. Mercer Cty. Cmty. Coll., 
    202 N.J. 98
    , 106-07 (2010)).
    "Those commands provide the force underlying the frequent case
    law refrain that 'the clear public policy of this State is to
    eradicate invidious discrimination from the workplace.'"                        
    Id. at 17
                                   A-5983-12T4
    228 (quoting Craig v. Suburban Cablevision, Inc., 
    140 N.J. 623
    ,
    630 (1995)).
    "Because     of    its    remedial         purpose,    the     LAD       should   be
    construed liberally . . . ."                Zive v. Stanley Roberts, Inc., 
    182 N.J. 436
    ,   446    (2005).          However,      "the     LAD    acknowledges         the
    authority     of   employers         to    manage   their     own    businesses"         and
    "prevents     only       unlawful         discrimination      against       [protected]
    individuals . . . ."         
    Ibid. (emphasis omitted). It
    is also well-settled that a plaintiff bears the burden
    to establish a prima facie case showing he or she was a victim
    of discrimination by an employer.                    Victor v. State, 
    203 N.J. 383
    , 408 (2010).          Typically, a prima facie case of employment
    discrimination       based      on   sex    is    established       when    a    plaintiff
    demonstrates by a preponderance of the evidence that he or she
    (1) is a member of a designated protected class; (2) who was
    qualified for and performing the essential functions of the job;
    but (3) suffered termination or other adverse employment action;
    and (4) others not in the protected class did not suffer similar
    adverse employment actions.                 
    Id. at 409.
          However, "[t]here is
    no   single   prima      facie       case    that   applies     to    all       employment
    discrimination claims.           Instead, the elements of the prima facie
    case vary depending upon the particular cause of action."                                
    Id. at 408.
    18                                   A-5983-12T4
    As noted, all plaintiffs allege sexual harassment hostile
    work    environment,           disparate    treatment,        disparate       impact,     and
    gender stereotyping.                 "Identifying the elements of the prima
    facie      case    that   are     unique    to      the    particular       discrimination
    claim is critical to its evaluation."                      
    Id. at 410.
    The   test     for      hostile     work     environment      sexual     harassment
    claims,      irrespective        of    a   defendant's       effort     to    dispute     the
    evidence,         requires      "a    female      plaintiff       allege     conduct    that
    occurred because of her sex and that a reasonable woman would
    consider      sufficiently            severe        or    pervasive     to     alter      the
    conditions of employment and create an intimidating, hostile, or
    offensive working environment."                     Lehmann v. Toys 'R' Us, Inc.,
    
    132 N.J. 587
    , 603-04 (1993).                        Restated, the elements of the
    claim include: "[T]he complained-of conduct (1) would not have
    occurred but for the employees' gender; and it was (2) severe or
    pervasive enough to make a (3) reasonable woman believe that (4)
    the     conditions        of    employment        are     altered     and    the    working
    environment is hostile or abusive."                      
    Ibid. (emphasis omitted). A
       claim    of     discrimination          based    on    disparate       treatment
    generally is analyzed under the framework initially set forth in
    McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 802, 
    93 S. Ct. 1817
    , 1824, 
    36 L. Ed. 2d 668
    , 677 (1973).                         First, the plaintiff
    must establish a prima facie case of discrimination.                                 
    Id. at 19
                                      A-5983-12T4
    
    802, 93 S. Ct. at 1824
    , 36 L. Ed. 2d at 677.                    If successful, a
    presumption    of    discrimination       is   created    and    the     burden   of
    production    then   shifts   to    the    employer      "to    articulate       some
    legitimate, nondiscriminatory reason for" its action.                    
    Ibid. If the employer
    meets this burden, the plaintiff must overcome the
    burden   of    proof     by   a     preponderance         of     the     evidence,
    demonstrating that the employer's "legitimate" reason was merely
    a pretext for discrimination.         
    Id. at 804,
    93 S. Ct. at 
    1825, 36 L. Ed. 2d at 679
    .          In the context of summary judgment, to
    sufficiently    discredit     the   employer's        reason,      and    thus    to
    survive summary judgment, the plaintiff "must demonstrate such
    weaknesses, implausibilities, inconsistencies, incoherencies, or
    contradictions in" the proffered reason that a factfinder could
    reasonably find it incredible.            Fuentes v. Perskie, 
    32 F.3d 759
    ,
    765 (3d Cir. 1994).
    Our Court has stated the proofs required for a disparate
    impact claim are based upon those required under federal law.
    Gerety v. Atl. City Hilton Casino Resort, 
    184 N.J. 391
    , 400
    (2005); see also 42 U.S.C.A. § 2000e-2(k)(1).                    "[C]laims that
    stress 'disparate impact' . . . involve[] employment practices
    that are facially neutral in their treatment of different groups
    but that in fact fall more harshly on one group than another and
    cannot be justified by business necessity."                Gerety, supra, 184
    20                                   A-5983-12T4
    N.J. at 398 (quoting Peper v. Princeton Univ. Bd. of Trs., 
    77 N.J. 55
    , 81-82 (1978)).                "Rather [than proving discriminatory
    motive], a plaintiff must show that a facially neutral policy
    'resulted in a significantly disproportionate or adverse impact
    on members of the affected class.'"                   
    Id. at 399
    (quoting United
    Prop. Owners Ass'n of Belmar v. Borough of Belmar, 343 N.J.
    Super. 1, 47 (App. Div.), certif. denied, 
    170 N.J. 390
    (2001)).
    "The     disparate      impact    test     has    been   applied       to    hiring
    criteria . . . ."           Rosario v. Cacace, 
    337 N.J. Super. 578
    , 587
    (App. Div. 2001) (citing Griggs v. Duke Power Co., 
    401 U.S. 424
    ,
    
    91 S. Ct. 849
    , 
    28 L. Ed. 2d 158
    (1971)).                     The LAD "forbids the
    use of any employment criterion, even one neutral on its face
    and    not     intended     to    be    discriminatory,         if,    in     fact,      the
    criterion causes discrimination as measured by the impact on a
    person    or     group    entitled      to   equal      opportunity."         Garcia       v.
    Gloor, 
    618 F.2d 264
    , 270 (5th Cir. 1980), cert. denied, 
    449 U.S. 1113
    , 
    101 S. Ct. 923
    , 
    66 L. Ed. 2d 842
    (1981).                        See also Newark
    Branch, N.A.A.C.P. v. Town of Harrison, 
    940 F.2d 792
    , 798 (3d
    Cir.     1991)      (stating     "to    establish       a   prima     facie    case       of
    disparate       impact    discrimination,         a   plaintiff       is    required      to
    demonstrate that application of a facially neutral standard has
    resulted       in   a   significantly        discriminatory      hiring       pattern").
    "However, there is no disparate impact if the rule is one that
    21                                    A-5983-12T4
    the affected employee can readily observe and nonobservance is a
    matter of individual preference."                      
    Garcia, supra
    , 618 F.2d at
    270.     "An adverse effect on a single employee, or even a few
    employees,       is   not    sufficient      to       establish     disparate      impact."
    Massarsky v. Gen. Motors Corp., 
    706 F.2d 111
    , 121 (3d Cir.),
    cert. denied, 
    464 U.S. 937
    , 
    104 S. Ct. 348
    , 
    78 L. Ed. 2d 314
    (1983).
    State courts have relied on "the federal courts and their
    construction of federal laws for guidance in those circumstances
    in which our LAD is unclear."                    
    Victor, supra
    , 203 N.J. at 398.
    See also Wesley v. Palace Rehab. & Care Ctr., L.L.C., 
    3 F. Supp. 3d
        221,    230    (D.N.J.      2014)     ("Courts           employ    the    Title      VII
    evidentiary       framework       and    standard          of   review    when    analyzing
    claims      under     the    []LAD.").           Discrimination          based   on    gender
    stereotyping has been determined to fall within the prohibition
    of Title VII, which provides: "It shall be an unlawful practice
    for    an     employer      --   (1)    to   .    .    .   discriminate         against     any
    individual with respect to his . . . sex . . . ."                           42 U.S.C.A. §
    2000e-2(a)(1).           See Price Waterhouse v. Hopkins, 
    490 U.S. 228
    ,
    
    109 S. Ct. 1775
    , 
    104 L. Ed. 2d 268
    (1989) (holding employer's
    failure to promote employee because she was perceived as less
    than feminine was illegal gender stereotyping and, a form of
    discrimination under Title VII).                      Because "Congress intended to
    22                                       A-5983-12T4
    strike at the entire spectrum of disparate treatment of men and
    women resulting from sex stereotypes," Price 
    Waterhouse, supra
    ,
    490 U.S. at 
    251, 109 S. Ct. at 1791
    , 
    104 L. Ed. 2d
    at 288, the
    inquiry is whether the harasser treats a member or members of
    one sex differently from members of the other sex, because of
    their gender.
    Currently,     the   LAD    prohibits        discrimination      based       on
    "gender   identity    or   expression"       and    "affectional       or     sexual
    orientation."      N.J.S.A. 10:5-12(a).            Often the terms "gender"
    and "sex" are used interchangeably.                 Prior to    the statutory
    amendment adding "gender identification or expression, affection
    or   sexual   orientation,"      see   L.   2006,   c.   100,   this    court      in
    Enriquez v. West Jersey Health Systems, 
    342 N.J. Super. 501
    , 512
    (App. Div. 2001), noted the distinction between sex and gender,
    stating the latter encompassed "whether a person has qualities
    that society considers masculine or feminine."                  (citation and
    quotation marks omitted).          We held the gender stereotyping was
    gender discrimination under the LAD.           
    Id. at 515-16.
    C.
    Another consideration is whether plaintiffs timely asserted
    their claims.      Although the LAD contains no specific provision,
    it is clear "[t]he statute of limitations for claims arising
    under the LAD is two years."            Shepherd v. Hunterdon Dev. Ctr.,
    23                                   A-5983-12T4
    
    174 N.J. 1
    , 17 (2002) (citing Montells v. Haynes, 
    133 N.J. 282
    ,
    292 (1993)).         Where only discrete acts of discrimination are
    alleged, the statute of limitations is easily calculated as two
    years   from   the    date   of   the    event.    See    N.J.S.A.   2A:14-2(a)
    ("Every action at law for an injury to the person caused by the
    wrongful act, neglect or default of any person within this State
    shall be commenced within two years next after the cause of any
    such action shall have accrued . . . .").            Accordingly,
    discrete acts of discrimination, such as
    termination or a punitive retaliatory act,
    are usually readily known when they occur
    and thus easily identified in respect of
    timing.       Hence,    their    treatment    for
    timeliness purposes is straightforward: "A
    discrete retaliatory or discriminatory act
    occurs on the day that it happens." Roa v.
    Roa, 
    200 N.J. 555
    , 567 (2010) (citation,
    internal quotation marks, and editing marks
    omitted).    Discriminatory    termination    and
    other    similar   abrupt,    singular   adverse
    employment actions that are attributable to
    invidious discrimination, prohibited by the
    LAD,    generally    are    immediately     known
    injuries,     whose    two-year     statute    of
    limitations period commences on the day they
    occur. 
    Id. at 569.
    [
    Alexander, supra
    , 204 N.J. at 228.]
    However, if alleged conduct forming the cause of action
    "constitutes    a     series      of    separate   acts    that   collectively
    constitute one unlawful employment practice, the entire claim
    may be timely if filed within two years of the date on which the
    last component act occurred."            
    Id. at 229
    (citation and internal
    24                            A-5983-12T4
    quotation marks omitted).        In appropriate LAD hostile workplace
    environment     claims,    the    "continuing      violation"     doctrine,
    recognized under federal Title VII law, has been applied as an
    equitable exception to the strict application of a statute of
    limitations.     Ibid.; see also 
    Shepherd, supra
    , 174 N.J. at 18
    (discussing    the   equitable   exception    to   the    LAD   limitations
    period through application of the judicially-created continuing
    violations    doctrine).    "When    an   individual     is   subject   to   a
    continual, cumulative pattern of tortious conduct, the statute
    of limitations does not begin to run until the wrongful action
    ceases."     Wilson v. Wal-Mart Stores, 
    158 N.J. 263
    , 272 (1999).
    "The premise underlying the doctrine is that the conduct becomes
    actionable because of its 'continuous, cumulative, synergistic
    nature.'"     
    Roa, supra
    , 200 N.J. at 566 (quoting 
    Wilson, supra
    ,
    158 N.J. at 273).
    To determine whether alleged incidents of discrimination
    constitute a continuing violation, a court should consider the
    following:
    (i) subject matter -- whether the violations
    constitute the same type of discrimination;
    (ii) frequency; and (iii) permanence --
    whether the nature of the violations should
    trigger an employee's awareness of the need
    to assert her rights and whether the
    consequences of the act would continue even
    in the absence of a continuing intent to
    discriminate.
    25                              A-5983-12T4
    [Bolinger v. Bell Atl., 
    330 N.J. Super. 300
    ,
    307 (App. Div.) (quoting Bullington v.
    United Air Lines, Inc., 
    186 F.3d 1301
    , 1310
    (10th Cir. 1999)), certif. denied, 
    165 N.J. 491
    (2000).]
    III.
    With these principles in mind, we consider the sufficiency
    of the evidence to form a prima facie cause of action alleging
    prohibited discriminatory conduct to survive summary judgment
    dismissal.     In discussing the issues, we have not separately
    addressed plaintiffs' challenges to the factual findings made by
    the motion judge, but rather we have interwoven these issues
    among the discussion of various legal issues.            Our review will
    also examine whether defendant correctly asserts all causes of
    action are barred by the two-year statute of limitations or the
    equitable remedies of laches and estoppel.
    Generally, plaintiffs allege (1) the PAS on its face was
    discriminatory, in violation of the LAD, and outside the bounds
    of reasonable appearance standards as provided in N.J.S.A. 10:5-
    12(p);   (2)   the   PAS   weight   standard   imposed   unlawful    gender
    stereotyping; (3) defendant's disparate enforcement of the PAS
    weight standard resulted in gender bias sexual harassment; (4)
    the PAS weight standard had a disparate impact upon females; and
    (5) defendant's conduct in enforcing the PAS created a hostile
    work environment.
    26                             A-5983-12T4
    A.
    Plaintiffs attack as facially discriminatory the content of
    the modified PAS weight standard along with other grooming and
    appearance     requirements,   such     as    the   BorgataBabes        costume.
    Defendant     counters,    arguing    these    claims      are    time-barred.
    Plaintiffs acknowledge their complaints were not filed within
    two years of the implementation of the modified PAS, but respond
    application     of   the   continuing      violation      doctrine      applies.
    Although raised below, the motion judge did not consider whether
    specific causes of action were untimely.
    The modified PAS, announced on February 18, 2005, and the
    original standards governing costume and appearance are discrete
    acts,   of   which   all   BorgataBabes      were   notified.        Plaintiffs
    individually    acknowledged    the     modified    PAS    when    a    baseline
    weight was determined.       Each signed a statement to abide by the
    PAS terms as an ongoing requirement of employment.                     As to the
    costume, plaintiffs auditioned in costume, making knowledge of
    its use a discrete act.
    We reject the attempt to save the facial discrimination
    challenges by application of the continuing violation doctrine.
    Although defendant continued use of the modified PAS, as well as
    the costume and make-up standards, the essence of plaintiffs'
    as-applied claims stems from the adoption of the policy, which
    27                                 A-5983-12T4
    itself    led    to     the   specific          employment      consequences              now
    challenged.      No new policies were adopted.                     The PAS was not
    amended to add additional restrictions; rather, PAS amendments
    relaxed   various      timeframes     to    return      to   compliance          with     the
    weight standard.
    Because the adoption of the modified PAS was a discrete
    event with attendant permanent consequences, it triggered any
    then-employed     BorgataBabe's       awareness         of   the    need       to    assert
    existing rights or assert a facial challenge.                            See 
    Bolinger, supra
    ,    330   N.J.   Super.    at   308.        Consequently,           the    two-year
    statute    of   limitations      clock       began      ticking         either      at     the
    adoption of the PAS on February 18, 2005 or when a plaintiff was
    subsequently     hired.       Accordingly,        the    time      to    challenge         the
    imposed     weight      standard       or       the      costume          as     facially
    discriminatory, for all BorgataBabes employed when the PAS was
    adopted, expired on February 18, 2007.                   However, complaints of
    all   BorgataBabes      in    defendant's         employ     when        the     PAS       was
    modified, were filed in 2009 more than two years later.
    Two plaintiffs were not BorgataBabes when the modified PAS
    was adopted:      Williams and McDonnell.               Williams had until June
    13, 2008 to file, but, by waiting until January 20, 2009 to
    file, she also missed the limitations period to raise a facially
    discriminatory      challenge.        Only      McDonnell's        complaint,            filed
    28                                       A-5983-12T4
    within two years of her date of hire, timely asserted a claim
    the PAS was illegally discriminatory on its face; all others are
    time-barred.
    The     same   analysis     will   not       apply    to   plaintiffs'     claims
    based on sexual harassment hostile work environment, disparate
    treatment and impact, and sexual harassment gender stereotyping,
    which   are    not   confined      to    a       discrete   event.      Rather     these
    allegations comprise an ongoing course of conduct and therefore
    allege a continuing violation.                More pointedly, although perhaps
    no   single    act   rises   to    the       level     of   an   LAD   violation,     the
    various     facts    combine      to    form       a   pattern    of   discriminatory
    conduct, which cumulatively present a prima facie case showing
    defendant violated the LAD.                  In reviewing these claims, if we
    find prima facie evidence of an LAD violation, and one of the
    acts alleged occurred within two years of filing the complaint,
    the cause of action may not be time-barred.7
    B.
    McDonnell's       complaint        alleges        defendant       designed      and
    enforced      the    PAS   to     have       a     disparate     impact    on    female
    7
    We reject defendant's assertion of laches as barring suit.
    R. 2:11-3(e)(1)(E).      As to whether waiver applies, the
    individual facts are materially disputed.        Some plaintiffs
    executed the modified PAS "under protest."    Others were led to
    believe   any    objection   would    result   in    termination.
    Consequently, summary judgment on this issue is inappropriate.
    29                                 A-5983-12T4
    BorgataBabes    based       on   their    gender         and    female    BorgataBabes
    suffered disparate treatment under the policy, which was an act
    of   gender   stereotyping.         She       was       never     suspended    and   her
    position was never affected; rather, she challenges the PAS as
    facially discriminatory.
    Whether   the     PAS      generally          and     the     weight     standard
    specifically    are     actionable       as      sex      discrimination       requires
    consideration    of    additional        legal      principles.          "Courts     have
    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 or grooming code is a
    proper management prerogative."               Craft v. Metromedia, Inc., 
    766 F.2d 1205
    , 1215 (8th Cir. 1985), cert. denied, 
    475 U.S. 1058
    ,
    
    106 S. Ct. 1285
    , 
    89 L. Ed. 2d 592
    (1986).                      Moreover, there is no
    protected class based solely on one's weight.8                     The LAD addresses
    no such category nor does Title VII "proscribe discrimination
    based upon an employee's excessive weight . . . ."                            Taylor v.
    Small, 
    350 F.3d 1286
    , 1292 (D.C. Cir. 2003).
    The LAD addresses appearance at N.J.S.A. 10:5-12(p):
    Nothing in the                 provisions of this
    section shall affect                the ability of an
    8
    Neither McConnell nor any other plaintiff has alleged their
    weight represents a physical handicap requiring accommodation,
    which entails a different LAD analysis.    See Viscik v. Fowler
    Equip. Co., 
    173 N.J. 1
    , 15-16 (2002).
    30                                    A-5983-12T4
    employer to require employees to adhere to
    reasonable workplace appearance, grooming
    and dress standards not precluded by other
    provisions of State or federal law, except
    that an employer shall allow an employee to
    appear, groom and dress consistent with the
    employee's gender identity or expression.
    No   reported      New     Jersey       case    has    considered         a    challenge
    under this subsection of the LAD.                       We note other jurisdictions
    have   reviewed       allegations         of   discrimination          by    an      employer's
    appearance       standards          to     determine         whether    the          challenged
    policies     fall     within      an      employer's      imposition        of       reasonable
    appearance and grooming policies, or cross the line and violate
    legislative proscriptions against discrimination.                             The reported
    authority makes clear such a determination is fact-sensitive.
    We recite these examples as illustrative of the law's evolution,
    and they are not meant to be exhaustive.
    In   Bellissimo       v.     Westinghouse         Electric      Corporation,            
    764 F.2d 175
    , 178, 182 (3d Cir. 1985), cert. denied, 
    475 U.S. 1035
    ,
    
    106 S. Ct. 1244
    , 
    89 L. Ed. 2d 353
    (1986), the court reversed a
    finding     of    sex       discrimination            under    Title    VII          where    the
    plaintiff alleged she was criticized because her attire was non-
    conforming       to   the    defendant's         sex-specific       dress         code.        The
    court noted "[d]ress codes . . . are permissible under Title VII
    as   long   as    they,      like    other      work    rules,    are       enforced         even-
    handedly     between        men     and     women,      even    though       the       specific
    31                                      A-5983-12T4
    requirements may differ."              
    Id. at 181.
                Accordingly, policies
    need   not    be   exactly      the   same   for        each   gender,   but       will    be
    considered evenhanded for the purposes of Title VII when they
    contain      similar    restrictions         for    both       sexes.     
    Ibid. In rejecting the
    plaintiff's arguments, the court stated:
    Perhaps no facet of business life is more
    important than a company's place in public
    estimation.   That the image created by its
    employees dealing with the public when on
    company assignment affects its relations is
    so well known that we may take judicial
    notice of an employer's proper desire to
    achieve favorable acceptance.
    [Ibid. (quoting Fagan v. Nat'l Cash Register
    Co., 
    481 F.2d 1115
    , 1124-25 (D.C. Cir.
    1973)).]
    In Price Waterhouse, an employer's sex-based evaluation,
    not related to performance or ability, resulted from a decision
    to   deny    a   partnership      promotion        to    the   plaintiff,      a     female
    senior manager, who was perceived as less than feminine.                              Price
    
    Waterhouse, supra
    , 490 U.S. at 
    258, 109 S. Ct. at 1795
    , 104 L.
    Ed. 2d at 293.           The United States Supreme Court concluded a
    discriminatory         motive     affected         the     plaintiff's      employment
    opportunity and represented illegal gender stereotyping, a form
    of discrimination under Title VII, observing:
    we are beyond the day when an employer could
    evaluate employees by assuming or insisting
    that they matched the stereotype associated
    with   their   group,   for   in  forbidding
    employers     to     discriminate    against
    32                                        A-5983-12T4
    individuals because of their sex, Congress
    intended to strike at the entire spectrum of
    disparate   treatment   of  men  and   women
    resulting from sex stereotypes.
    [Id. at 
    251, 109 S. Ct. at 1791
    , 
    104 L. Ed. 2d
    at 288 (citation and internal quotation
    marks omitted).]
    At issue in Delta Air Lines v. New York State Division of
    Human Rights, 
    229 A.D.2d 132
    , 134 (N.Y. App. Div. 1996), aff'd
    
    689 N.E.2d 898
    (1997), was whether the airline's use of weight
    standards when hiring flight attendants constituted, among other
    things, gender discrimination.             The airline argued the height
    and weight standards were permissible nondiscriminatory grooming
    standards.     
    Id. at 134-35.
            The Supreme Court of New York,
    Appellate    Division,    determined       plaintiffs'   challenge   to    the
    airline's    weight      guidelines    was     also   not   actionable      as
    establishing sex discrimination, stating:
    [I]n the matter at bar, there is no evidence
    in the record that Delta intended to deprive
    one sex of equal opportunity or treatment,
    or that the weight requirements were somehow
    applied in a discriminatory manner.       In
    fact, Delta has submitted evidence that
    approximately 90% of its flight attendants
    are female, thereby erasing petitioners'
    claim that the weight charts were somehow
    utilized to discriminate against women,
    insofar   as  no  disparate   impact  toward
    females can be shown whatsoever. Therefore,
    petitioners' claim of sex discrimination
    fails.
    [Id. at 141.]
    33                             A-5983-12T4
    A similar Title VII challenge was presented in Frank v.
    United Airlines, Inc., 
    216 F.3d 845
    , 847 (9th Cir. 2000), where
    the class of plaintiffs challenged the employer's use of maximum
    weight requirements as imposing different standards upon female
    flight attendants and their male counterparts.                  The plaintiffs
    argued the employer's policy was facially discriminatory and was
    enforced in a discriminatory manner.                  
    Ibid. The plaintiffs proved
      the    weight    charts    addressed    medium-framed       women,    but
    large-framed men.        
    Id. at 854.
       That difference in treatment was
    facially discriminatory as it applied less favorable treatment
    to one gender over the other.               
    Ibid. The sex-differentiated weight
    standard was determined to be invalid because it imposed
    unequal burdens on men and women, which was unjustified as a
    bona fide occupational qualification.9              
    Id. at 855.
    Jespersen v. Harrah's Operating Co., 
    444 F.3d 1104
    (9th
    Cir.   2006),   addressed    a     plaintiff's      challenge   to   a   casino's
    "comprehensive uniform, appearance and grooming standards for
    all bartenders," which differentiated between men and women by
    9
    The Ninth Circuit has several reported cases reviewing
    facial discrimination challenges to weight restrictions under
    Title VII. The rationale applied in those cases mirrors that in
    Frank; that is, whether the policy on its face was less
    favorable and more burdensome to one gender than the other. See
    Gerdom v. Cont'l Airlines, 
    692 F.2d 602
    , 610 (9th Cir. 1982)
    (finding policy requiring only female flight attendants to
    comply with weight requirements violated Title VII).
    34                                A-5983-12T4
    prohibiting men from, but requiring women to, wear make-up.                          
    Id. at 1105,
    1107.        The plaintiff challenged the make-up requirement
    as placing an unequal burden on women and as sex stereotyping.
    
    Id. at 1106.
             The court held Title VII requires an employer's
    actions        be     intentionally        discriminatory           or       have      "a
    discriminatory effect on the basis of gender."                      
    Id. at 1108-09.
    Affirming      the    summary    judgment      dismissal     of     the   plaintiff's
    complaint,      the    court     concluded,     "a    sex-based      difference        in
    appearance      standards       alone,    without     any    further      showing     of
    disparate      effects,"    will    not    create     a     prima    facie    case    of
    discriminatory treatment.            
    Id. at 1109.
              The court also found
    the    different      grooming    standards     for   men     and    women    did    not
    impose a more onerous standard for one gender.                    
    Id. at 1111.
    Further, the court rejected the plaintiff's argument the
    make-up requirement was sex stereotyping, noting: "If we were to
    do so, we would come perilously close to holding that every
    grooming, apparel, or appearance requirement that an individual
    finds personally offensive, or in conflict with his or her own
    self-image, can create a triable issue of sex discrimination."
    
    Id. at 1112.
             See also Fountain v. Safeway Stores, Inc., 
    555 F.2d 753
    ,    755-56     (9th    Cir.     1977)     (stating       an   employer's
    regulations, which required male and female employees to conform
    35                                   A-5983-12T4
    to different grooming and dress standards, alone were not sex
    discrimination under Title VII).
    A general principle gleaned from the cited authorities is:
    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.       See Rivera v. Trump Plaza Hotel & Casino,
    
    305 N.J. Super. 596
    , 602-03 (App. Div. 1997) (citing federal
    decisions uniformly rejecting challenges to an employer's hair
    length policy because hair length is not constitutionally or
    statutorily protected).        Mindful of the objectives of achieving
    equal employment opportunities and removing barriers that favor
    an identifiable group over others, we undertake review of the
    fact-sensitive issue of whether the PAS discriminated against
    women on its face.
    McConnell     contends   the   trial    judge    erred    in   relying    on
    subsection N.J.S.A. 10:5-12(p) as legitimizing the PAS weight
    standard arguing he "ignored the portion of the subsection that
    addresses gender identity or expression."              Further, she suggests
    the motion judge ignored the language of subsection (a), which
    impacts and contours the parameters of subsection (p).
    36                                A-5983-12T4
    The    PAS     applied     to    both     male    and     female    associates.
    Although    defining     different          but     analogous     general      gender
    appearance standards, the PAS weight standard imposed the same
    7% above baseline weight increase for men as for women.                             The
    policy recognized pregnancy, a gender specific condition, in the
    category    of    bona   fide       medical       conditions      representing        an
    exception to enforcement.             We find these provisions are not
    facially discriminatory.            Unlike the weight charts in Frank and
    subsequent airline cases, the PAS did not impose a designated
    weight for associates of a certain height, or use differing
    standards to determine whether weight of males and females met
    defined    limits.       Rather,      the     PAS    accepted      an   associate's
    baseline weight as of the date of adoption and mandated weight
    gain or loss must not exceed 7% of that baseline.
    All     plaintiffs       individually         expressed      dislike    for,     or
    struggled to comply with, the weight standard.                      However, this
    does not demonstrate the facially neutral policy more adversely
    affects women than men.             In addition to plaintiffs' subjective
    response, their evidence challenging the PAS appears to rely on
    sheer numbers: They argue because a disproportionately higher
    number of female BorgataBabes were disciplined, this proves the
    weight standard unequally affected women.                   However, such simple
    statistical      disparities    are    insufficient         to   show   the     weight
    37                                    A-5983-12T4
    standard was facially discriminatory.              See Watson v. Fort Worth
    Bank & Trust, 
    487 U.S. 977
    , 994, 
    108 S. Ct. 2777
    , 
    101 L. Ed. 2d 827
    (1988).
    Here,    no    expert   evidence    explained       how   the    PAS    weight
    standard, which was neutral on its face, posed an unequal burden
    on one gender over the other.                 Also, no proof supports the
    contention     the   PAS   weight     standard   adversely      affected      female
    over male applicants for positions or advancement.                        Further,
    nothing   reveals      defendant's      reliance     on    a    7%    increase      as
    representing a clinically significant weight gain was erroneous
    or disproportionately burdensome to women.
    We also cannot find the use of the differentiated costumes
    for male and female BorgataBabes actionable.                        See Hayden v.
    Greensburg Cmty. Sch. Corp., 
    743 F.3d 569
    , 578 (7th Cir. 2014)
    (discussing     federal    authority     governing    differential        grooming
    standards for males and females).             All associates, whether male
    or   female,   are    required   to    wear   costumes     as   a     condition     of
    employment; women were not singled out.               See Carroll v. Talman
    Fed. Sav. & Loan Ass'n of Chicago, 
    604 F.2d 1028
    , 1032-33 (7th
    Cir. 1979) (rejecting as discriminatory employer's policy that
    38                                   A-5983-12T4
    women alone wear uniforms), cert. denied, 
    445 U.S. 929
    , 100 S.
    Ct. 1316, 
    63 L. Ed. 2d 762
    (1980).10
    Although     the      prohibitions    against
    discrimination in employment based on sex
    extend not only to hiring but to conditions
    and privileges of employment . . ., we do
    not believe that an employer unlawfully
    discriminates    when    he   establishes   a
    reasonable grooming policy which may be said
    to differentiate between male and female.
    Employers, particularly those whose business
    involves contact with the public should be
    free to express and act upon a concern with
    the image which their employees communicate
    by their appearance and demeanor.
    [Matter of Page Airways v. N.Y. State Div.
    of Human Rights, 
    352 N.E.2d 140
    , 140-41
    (1976) (citations omitted).]
    The     record    contains        only     photographs       of    the     female
    BorgataBabes       wearing    the     designated      costume,     which       is    form
    fitting, skimpy, and reminiscent of a Las Vegas-themed casino.
    The record states the men wore a tight-fitted club shirt and
    fitted     pants.       Although       McConnell          correctly     asserts      the
    BorgataBabe    costume       stereotypes      the    hour-glass       figure    of   the
    female, she ignores the expressed business differentiation in
    the role of a BorgataBabe from other casino associates.
    This is not a case similar to Equal Employment Opportunity
    Commission    v.    Sage     Realty    Corp.,       507    F.   Supp.   599,    602-04
    10
    We need not address the BorgataBabes calendar. No evidence
    reflects this was mandated as part of plaintiffs' or any other
    associate's employment. Calendar participation was voluntary.
    39                                    A-5983-12T4
    (S.D.N.Y. 1981), where a lobby attendant was required to wear a
    short,       revealing      outfit,     resembling       an     American      flag,     to
    commemorate the Bicentennial.             There, when the plaintiff refused
    to continue to wear the uniform because it provoked sexualized
    comments, her employment was terminated.                      
    Id. at 607.
        The court
    rejected the employer's claim the uniform fell within reasonable
    appearance standards, noting the lobby attendant's job was to
    greet and direct those who entered the building, making the
    sexually provocative "uniform" inappropriate to the employment
    task.       
    Id. at 608-09.
        Here, defendant's business was to provide
    customers      entertainment      and    the        BorgataBabes'      costumes    aided
    the Las Vegas-style casino theme.
    The record shows the BorgataBabe position comprised more
    than    a    job    serving    drinks    and        washing    glasses.       From     its
    inception, an element of performance and a public appearance
    component was part of the described BorgataBabe position.                              The
    record does not dispute the BorgataBabes appeared as the face of
    the casino outside the casino floor.11                   Further, based on their
    designated         role   on   behalf     of        defendant     BorgataBabes        were
    provided lower and more flexible hours, more beneficial earning
    opportunities,        and   perquisites        of    employment       not   extended   to
    11
    A print media pictorial               feature       on     the   BorgataBabes      is
    included in the record.
    40                                    A-5983-12T4
    defendant's   other    associates.         These   facts   demonstrate       the
    business specialization of the BorgataBabes among defendant's
    associates.
    We   generally   agree     customer    preferences    cannot      justify
    discriminatory hiring or the use of stereotyping gender roles in
    employment positions.12    See Fernandez v. Wynn Oil Co., 
    653 F.2d 1273
    , 1277 (9th Cir. 1981); Diaz v. Pan Am. World Airways, Inc.,
    
    442 F.2d 385
    , 389 (5th Cir.), cert. denied, 
    404 U.S. 950
    , 92 S.
    Ct. 275, 
    30 L. Ed. 2d 267
    (1971).                  However, the hiring of
    BorgataBabes was not gender restricted and the record contains
    no evidence female BorgataBabes' assignments or earning ability
    were compromised because of their gender.
    Moreover, the entertainment nature of the casino and its
    associates distinguishes it from a restaurant or tavern that
    serves    customers   drinks.      Notably,    the    casino    has    several
    restaurants and cocktail lounges.           Also, plaintiffs acknowledge
    non-PAS positions serving drinks were available in casino areas
    not designated for the BorgataBabe positions.                  As a casino,
    defendant's   entertainment      business    distinguishes      this     matter
    from other cases, as the costume may lend authenticity to the
    intended entertainment atmosphere.            See, e.g., Wilson v. S.W.
    12
    To   the  extent   the   trial   judge's opinion suggests
    "expectations of the employer's patrons" may justify policies
    that violate the LAD, it is rejected.
    41                                A-5983-12T4
    Airlines     Co.,    517    F.    Supp.       292,    302-03          (N.D.    Tex.     1981)
    (rejecting airline's Title VII defense to policy limiting flight
    attendant and ticketing positions to women based on their sex
    appeal     to    attract     male      business       travelers,            reasoning     the
    essential       business    of    the     airline      was       to     transport       their
    customers); Sage 
    Realty, supra
    , 507 F. Supp. at 602-04 (finding
    sexually    provocative       uniform        unrelated      to     business        of   lobby
    hostess for real estate firm violated Title VII).
    We also reject plaintiffs' contention the discriminatory
    impact of the PAS was "obvious and self-evident."                             The facts in
    this record offer no evidence defendant's use of the weight
    standard or differentiated costumes deprived women employment,
    earning         opportunities,          or        privileges           of      employment.
    Indisputably,       the    PAS    reflects         defendant's          overemphasis       on
    appearance, including weight.                Nevertheless, that alone is not
    actionable as illegal discrimination under the LAD.                                While we
    understand       plaintiffs'      desire      to     require      a     unisex,       gender-
    neutral    costume,       which   eliminates         all    sex-based         distinctions
    among BorgataBabes, we cannot conclude the LAD mandates this
    result.
    We conclude on this record the evidence fails to present a
    cognizable claim of facial discrimination based on defendant's
    PAS   weight      policy.         We    cannot       read    the       LAD    to    bar     as
    42                                     A-5983-12T4
    discriminatory       an   employer's    appearance    policy   requiring    an
    associate, representing a casino business to the public, must
    remain fit and within a stated weight range, such as required by
    the PAS.     See Marks v. Nat'l Commc'ns Ass'n, 
    72 F. Supp. 2d 322
    ,
    330   (S.D.N.Y.       1999)     (finding     employer's    preference      for
    physically     fit    employees    to    have   direct    interaction    with
    customers did not violate Title VII); Alam v. Reno Hilton Corp.,
    
    819 F. Supp. 905
    , 913-14 (D. Nev. 1993).
    C.
    Plaintiffs      next    assert    defendant    discriminated   against
    women when implementing and enforcing the PAS.              Plaintiffs cite
    testimony some of them were told "male costumed associates . . .
    were not weighed"; some observed men "who gained significant
    amounts of weight without being subject to a weigh-in [or the]
    subsequent requirement to come into conformance with the PAS";
    and others noted men "were able to purchase their own pants,
    rather than wear the Borgata costume."
    Plaintiffs insist the motion judge failed to accept these
    facts as true for summary judgment purposes.              They challenge as
    error his rejection of their proofs, which he characterized as
    anecdotal or hearsay.
    Grooming policies applicable to all, but not evenhandedly
    enforced between men and women, may disadvantage one gender over
    43                           A-5983-12T4
    the other and violate the LAD.                   See, e.g., 
    Marks, supra
    , 72 F.
    Supp. 2d at 330.            In this matter, to prove disparate treatment,
    plaintiffs      must    provide     admissible       evidence     showing      men     were
    treated as if exempt from the rules.
    The record demonstrates all associates — male and female —
    were weighed when the PAS was modified to include the weight
    standard.        Defendant's          documentation        records      the     baseline
    weights for employees subject to the PAS.                         The evidence also
    reveals few men were reweighed and none were disciplined.
    Plaintiffs         argue    the      motion    judge   erroneously        failed    to
    accord all favorable inferences to plaintiffs' testimony on this
    issue,       which     is    asserted       to     be     competent         evidence    of
    discriminatory         treatment.         Although      plaintiffs'      testimony       of
    their own personal experiences is admissible and competent to
    prove    a    prima     facie     case    of     discrimination,        statements       of
    opinion or belief regarding male associates' experiences is not
    cognizable evidence to support their claims.                           See Cinelli v.
    U.S. Energy Partners, 
    77 F. Supp. 2d 566
    , 572-73, 575-76 (D.N.J.
    1999) ("An issue is 'genuine' if it is supported by evidence
    upon which a reasonable jury could return a verdict for the non-
    moving party.").
    Testimony          relating    what     some    men    said   or    a    plaintiff's
    observation of what she considered a significant weight gain by
    44                                   A-5983-12T4
    a male is not competent proof.                      Nor is the fact that some men
    were not concerned about their weight demonstrative that these
    same men needed to be concerned.                      Plaintiffs' suggestions they
    never   saw    men      weighed    is     refuted      by   defendant's      documentary
    evidence.        Even the statements that some plaintiffs saw male
    associates with "big bellies" lacks foundation and additional
    context    necessary       to     show    a    violation     of    the     PAS    occurred.
    Further,      plaintiffs         offer    no     direct     evidence       from    a    male
    associate subject to the PAS explaining defendant ignored that
    he   gained      more    than     7%     of    his   baseline      weight.        Overall,
    plaintiffs'      proofs     alone       are    deficient.         Absent    accompanying
    competent proof, plaintiffs' claims of disparate enforcement of
    the PAS fails.
    D.
    The asserted hostile work environment gender stereotyping
    claims relate to the use of the female costume and the PAS
    weight standard to maintain the stereotypical image of a woman.
    Plaintiffs contend "the BorgataBabes are used as nothing more
    than    sex   objects       by    the     casino,      required      to    adhere      to   a
    stereotype       of      overt     and        aggressive      feminine       sexuality."
    Plaintiffs       maintain       male     BorgataBabes       are    not     sexualized       or
    marketed in the same way as females.                    They rely on Jespersen to
    suggest    the    LAD     prohibits       an    employer's        policy    making     women
    45                                  A-5983-12T4
    "conform    to    a     commonly-accepted         stereotypical    image    of     what
    women should wear."            
    Jespersen, supra
    , 444 F.3d at 1112.
    First, discussing gender stereotyping, the United States
    Supreme Court in Price Waterhouse stated:
    In saying that gender played a motivating
    part in an employment decision, we mean
    that, if we asked the employer at the moment
    of the decision what its reasons were and if
    we received a truthful response, one of
    those reasons would be that the applicant or
    employee was a woman.       In the specific
    context of sex stereotyping, an employer who
    acts on the basis of a belief that a woman
    cannot be aggressive, or that she must not
    be, has acted on the basis of gender.
    [Price 
    Waterhouse, supra
    , 490 U.S. at 
    250, 109 S. Ct. at 1790-91
    , 
    104 L. Ed. 2d
    at 287-
    88.]
    Second,        to     date,    New       Jersey   courts    reviewing       gender
    stereotyping discrimination claims have considered harassment of
    plaintiffs    who       were    thought      to   insufficiently   exhibit      traits
    perceived    to    be    assigned       to    their   gender.      In   Zalewski       v.
    Overlook Hospital, 
    300 N.J. Super. 202
    , 203 (Law Div. 1996), the
    plaintiff    was      harassed     by     coworkers    who   believed     he     was    a
    virgin.     Characterizing "gender stereotyping" as "the assigning
    of certain behavior characteristics as appropriate for women and
    for men but not for the other sex," 
    id. at 203
    n.1, the Law
    Division judge concluded the LAD clearly prohibited any sexual
    46                                A-5983-12T4
    harassment resulting in a hostile work environment, including
    discrimination based on gender stereotyping.                          
    Id. at 211.
    This     court       in     Enriquez,       which       concerned       a    transsexual
    female,     concluded       "sex     discrimination          under     the       LAD   includes
    gender discrimination so as to protect [a] plaintiff from gender
    stereotyping and discrimination for transforming herself from a
    man to a woman."            
    Enriquez, supra
    , 342 N.J. Super. at 515-16.
    Further, "[d]istinctions must be made on the basis of merit,
    rather than skin color, age, sex or gender, or any other measure
    that obscures a person's individual humanity and worth."                                 
    Id. at 526-27.
    We     reiterate          not    all     sex-based          differentiations              are
    actionable        and     "standards        that        appropriately        differentiate
    between       the       genders       are     not        facially       discriminatory."
    
    Jespersen, supra
    , 444 F.3d at 1109-10.                           Essentially, the law
    "does   not      demand     that     things      that    are    different         in    fact    be
    treated     the     same"      or    that     we      "pretend      that     there      are     no
    physiological       differences           between      men    and   women."            State    v.
    Vogt, 
    341 N.J. Super. 407
    , 418 (App. Div. 2001).
    We     do    not     deny      the    PAS     costume      and    physical         fitness
    standards imposed what many would label an "archaic stereotype"
    of   male     and       female      physiques.           Interestingly,            there       was
    disagreement        among      plaintiffs        on    the     appropriateness          of     the
    47                                        A-5983-12T4
    BorgataBabes       costume.            Some    found       it   too    revealing          and
    offensive.      Others had no complaints.                However, as Jespersen and
    Price Waterhouse clarify, actionable conduct results when these
    stereotypes are shown to be accompanied by a burden on one sex
    over     the   other     or     are     otherwise        used   to    interfere         with
    employment opportunities of the discriminated group.                           We cannot
    find support for the latter essential elements among the facts
    in this record.
    Regarding    the       weight    standard,        plaintiffs        claim    the     7%
    limit    imposes    "a     stereotype         of   feminine       sexual     appeal       and
    sexuality of the sort envisioned [in] Jespersen" as actionable.
    We cannot agree with such a generalization.                        We have discussed
    the     differentiated         role     of     the       BorgataBabes        from      other
    associates, and their costumes added to that distinction and
    defendant's      entertainment          setting.           We   cannot       agree      with
    plaintiffs that their personal reactions to the weight standard
    evince     proven      gender         stereotype         disparities.              Overall,
    discipline for non-compliance with the equally applicable PAS 7%
    weight     standard       by    both     men       and    women      was     very      rare.
    Defendant's evidence reflected only twenty-five of 686 women, or
    3%,    were    disciplined,       and    none      of     the   forty-six      men       were
    disciplined.
    48                                    A-5983-12T4
    E.
    The   trial    judge's        dismissal     of     the    alleged      sexual
    harassment hostile work environment discrimination claims based
    on defendant's conduct in enforcing the weight standard of the
    PAS is cited as erroneous.              Plaintiffs assert they suffered
    severe and pervasive discriminatory comments and treatment by
    supervisors   charged     with     enforcing     the    PAS   weight      standard
    because    they    were        women,     thereby      creating     a     hostile,
    intimidating, and abusive work environment.                More specifically,
    plaintiffs allege defendant engaged in conduct that amounted to
    sexual stereotyping sexual harassment while enforcing the PAS.
    Defendant     rejects        these      arguments,       maintaining       any
    discipline under the PAS resulted because of plaintiffs' weight,
    not their sex.     This general denial does not squarely meet the
    myriad of factual assertions of harassing conduct.                      The record
    includes   evidence       of     several     plaintiffs       who    experienced
    discriminatory interactions following pregnancies or documented
    medical conditions, most of which were specific only to women,
    in the course of enforcing the weight standard.
    Following our review, we agree material factual disputes
    regarding harassment experienced by some plaintiffs made summary
    judgment dismissal of their claims unwarranted.                It is important
    to   understand    that    although        all   plaintiffs       couched    their
    49                                A-5983-12T4
    testimony in the context of enforcement of the PAS, the claims
    are not discriminatory because of weight per se, but because of
    a gender specific characteristic such as pregnancy or a medical
    condition such that the weight comments actually targeted women.
    In essence, but for the subjected plaintiffs' sex, they would
    not have been the object of the harassment.                        We recite these
    examples:
    (1)   Barrella     was   weighed    at    least       nine    or     ten   times
    despite     presenting     documentation        of     a     medical       condition
    explaining her weight gain.
    (2)   Booker became pregnant with her second child and her
    supervisor stated she did not know whether to congratulate her,
    suggesting she believed Booker made up the statement to avoid a
    weigh-in.
    (3)   Kennelly     was   required    by    her       shift    manager      Diane
    Hardie to wear a maternity costume in the early stages of her
    pregnancy, prior to any need to do so.                 When she returned from
    maternity leave, Hardie expressed disbelief Kennelly's weight
    was within limits and required Kennelly to undergo a weigh-in
    twice during that day.
    (4)   B.   Johnson   was   prescribed       several      medications          for
    depression after giving birth.           Without regard for the status of
    her   medical    condition,    defendant       informed      her     she    would   be
    50                                      A-5983-12T4
    terminated upon the one-year anniversary of her child's birth if
    she did not comply with the weight standard.                      She resigned.
    (5)     Lopez    suffered     severe      asthma    following      her     child's
    birth    for    which    she   was    prescribed        several     medications      that
    impacted her weight.              Despite medical documentation, she was
    suspended for violating the PAS weight standard.                          Although she
    was shortly reinstated, she received only partial compensation.
    Later, despite Lopez's medical condition, Singe Huff, Borgata's
    Vice President of Talent, insisted Lopez lose one pound per
    week.    Her physician documented the health detriment she would
    suffer to accomplish such weight loss, which Huff rejected.
    (6)     Nelson was weighed despite being pregnant and was told
    by Hardie it was "just in case you're just getting fat and
    that's   the     real    reason    why     you   want     to    wear    [the    maternity
    costume]."
    (7)     Nouel recounted offensive comments by Jeffrey Rankin,
    in the presence of her shift manager Stephanie Brown that women
    who have children should not come back to work because they get
    fat.
    (8)     Rivera    suffered      a    medical       condition       and     despite
    returning      to   compliance       with     the   PAS        weight   standard,      was
    required to be reweighed every few weeks.
    51                                   A-5983-12T4
    (9)    Schiavo      grieved        a    suspension        for     failing      to    comply
    with    the    PAS       weight        standard.           Her    medical       documentation
    explaining     post-surgery             medication       contributed         to    her      weight
    gain was rejected.
    (10) Taylor returned from maternity leave and was found out
    of   compliance          with    the     PAS    weight       standard.          She     produced
    medical documentation stating she was breastfeeding and it was
    "medically      impossible"            for     her    to     lose      weight.          She      was
    suspended when she failed to return to compliance within ninety
    days.
    (11) Vaisyte         returned           from   maternity           leave    and        Brown
    suggested     she       pump     out    her    breast      milk     to    reach    the      weight
    standard.           A    subsequent       weigh-in         revealed       she     was      out    of
    compliance.         She submitted a physician's note stating she was
    breastfeeding and told not to diet for medical reasons.                                    After a
    few days, she was permitted to return to work, but was required
    to be reweighed every few months.
    These instances are all inclusive of the facts presented to
    support      this       claim.         Additional     evidence           reinforces        similar
    hostile work environment allegations, unmitigated by defendant's
    management.             Schiavo        complained       to    Preston       Patterson,           the
    Beverage Manager, when another employee was snorting like a pig
    toward certain female associates; Patterson did not take action.
    52                                         A-5983-12T4
    Werthmann       related    Patterson's       comment      to     the   BorgataBabes:
    "Don't anybody get pregnant.                 I don't want to hear anything
    about anybody's family or kids."                  The record shows only women
    suffered such harassment.             It is obvious similar comments were
    not directed toward men.
    Several discriminatory hostile work environment LAD claims
    do not need proof of overt sexual conduct in the workplace.
    Muench v. Twp. of Haddon, 
    255 N.J. Super. 288
    , 292 (App. Div.
    1992).      Harassment      based     on     gender     is     sufficient.       
    Ibid. Although we have
    found enforcement of the PAS weight standard
    alone    may    not   violate    the    LAD,      the    complained      of   conduct
    reflects    a    pattern    of   discriminatory          comments      toward    women
    suffering medical conditions or returning from maternity leave
    that present a prima facie cause of action.                     As Lehmann states:
    "discrimination       itself     is    the      harm    that    the    LAD   seeks   to
    eradicate. . . ."         
    Lehmann, supra
    , 132 N.J. at 610 (emphasis in
    original).       "[I]t is the harasser's conduct, not the plaintiff's
    injury, that must be severe or pervasive."                     
    Ibid. "Severity and workplace
    hostility are measured by surrounding circumstances."
    Taylor v. Metzger, 
    152 N.J. 490
    , 506 (1998).
    The record evidence of management and supervisors' conduct,
    when viewed in a light most favorable to plaintiffs, presents a
    prima facie showing of harassment against women because of their
    53                                 A-5983-12T4
    gender, which "a reasonable woman would consider sufficiently
    severe or pervasive to alter the conditions of employment and
    create        an        intimidating,       hostile,      or      offensive    working
    environment."            
    Lehmann, supra
    , 132 N.J. at 603-04.                  Incidents
    not obviously based on a plaintiff's sex must be prima facie
    shown to be because of her sex.                   Ivan v. Cnty. of Middlesex, 595
    F.    Supp.    2d       425,   454   (D.N.J.    2009).      The    evidence    here    is
    adequate to create a substantial dispute of material facts that
    the    harassment          alleged    was    gender      based,    defeating    summary
    judgment.          
    Taylor, supra
    , 152 N.J. at 508.
    The record also contains some evidence of reported sexual
    harassment         by    customers    and    sexually      harassing    comments      and
    actions       by    other      associates,      which    although     reported,     went
    unaddressed         by    supervisors.         Defendant's      evidence   included     a
    sexual harassment prevention policy and a hotline to make such
    reports.       The Supreme Court recently addressed evaluation of an
    employer's defense to claims of sexual harassment in Aguas v.
    State, 
    220 N.J. 494
    (2015).                    Aquas provided a framework for
    analyzing          claims      and    defenses        offered      regarding    sexual
    harassment hostile work environment claims.                         
    Id. at 499-500.
    With respect to direct claims for negligence or recklessness,
    the   Court's        discussion,      anchored      in   Restatement    [(Second)     of
    Agency] § 219(2)(b), provided:                  "[A]n employer's implementation
    54                                A-5983-12T4
    and enforcement of an effective anti-harassment policy, or its
    failure    to   maintain      such    a    policy,    is    a   critical    factor      in
    determining negligence and recklessness claims under Restatement
    (Second) of Agency § 219(2)(b)."                 
    Aguas, supra
    , 220 N.J. at 499.
    To   prevail       on    a     direct       claim     alleging       defendant's
    negligence, a plaintiff bears the burden to show a defendant
    negligently       created      a     discriminatory         work    environment         by
    "faili[ng]      to     exercise      due    care     with       respect     to    sexual
    discrimination in the workplace, that [the defendant's] breach
    of   the   duty   of    care   caused       the    plaintiff's      harm,    and     that
    [plaintiff] sustained damages."                  
    Id. at 512.
          To defend against
    such a claim as discussed in Aguas, defendant may prove:
    [T]he existence of: (1) formal policies
    prohibiting harassment in the workplace; (2)
    complaint structures for employees' use,
    both formal and informal in nature; (3)
    anti-harassment training, which must be
    mandatory for supervisors and managers, and
    must be available to all employees of the
    organization; (4) the existence of effective
    sensing or monitoring mechanisms to check
    the trustworthiness of the policies and
    complaint structures; and (5) an unequivocal
    commitment from the highest levels of the
    employer   that  harassment   would  not  be
    tolerated, and demonstration of that policy
    commitment by consistent practice.
    [Id. at 513 (quoting Gaines v. Bellino, 
    173 N.J. 301
    , 313 (2002)).]
    Based on our review of the record evidence, some plaintiffs
    have alleged facts sufficient to demonstrate that the PAS weight
    55                                   A-5983-12T4
    standards     were      enforced    in    a    harassing         manner    against        women
    because of their gender, creating a hostile work environment.
    Defendant's response noting accommodations were given to women
    fails to specifically address the alleged harassing acts.                                    On
    those claims summary judgment was prematurely entered.
    IV.
    For   the     reasons     discussed          in    our     opinion,     all    claims
    challenging the PAS as discriminatory on its face were properly
    dismissed because they were time-barred or unsupported.                                   As a
    matter of law, these challenges are not actionable under the
    LAD.     The record also does not support discriminatory gender
    stereotyping       by     the    use     of     sex-specific            costumes     or     the
    provisions of the PAS.            Further, no disparate impact is shown on
    these facts by the adoption of defendant's grooming and personal
    appearance policies.            However, the record does include adequate
    evidence      some       plaintiffs'           alleged          facts     sufficient         to
    demonstrate     defendant's        enforcement           of     the   weight   policy      was
    applied in a discriminatory harassing manner, targeting women
    returning from maternity and medical leave.                           Despite defendant's
    "accommodations"         of     these    documented           conditions,      allegations
    have been presented showing the policy was used to harass these
    women.       Collectively,        the    alleged         acts    adequately     suggest       a
    prima facie claim of sexual harassment hostile work environment.
    56                                     A-5983-12T4
    We reverse the summary judgment dismissal of the hostile
    work environment claims based on the conduct surrounding the
    identified plaintiffs, and we remand for further proceedings.
    We affirm the summary judgment dismissal of all other claims for
    the reasons stated in our opinion.
    Affirmed in part as modified.     Reversed and remanded in
    part.
    57                       A-5983-12T4
    

Document Info

Docket Number: A-5983-12T4

Citation Numbers: 442 N.J. Super. 346, 123 A.3d 272

Filed Date: 9/17/2015

Precedential Status: Precedential

Modified Date: 9/17/2015

Authorities (38)

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Nini v. Mercer County Community College , 202 N.J. 98 ( 2010 )

leslie-frank-pat-parnell-susan-broderick-carole-kirk-nichkol-melanson , 216 F.3d 845 ( 2000 )

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Muench v. Township of Haddon , 255 N.J. Super. 288 ( 1992 )

Hector GARCIA, Etc., Plaintiff-Appellant, v. Alton v. W. ... , 618 F.2d 264 ( 1980 )

Viscik v. Fowler Equipment Co., Inc. , 173 N.J. 1 ( 2002 )

Griggs v. Duke Power Co. , 91 S. Ct. 849 ( 1971 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Peper v. Princeton University Board of Trustees , 77 N.J. 55 ( 1978 )

Lehmann v. Toys 'R' US, Inc. , 132 N.J. 587 ( 1993 )

Manalapan Realty v. Township Committee of the Township of ... , 140 N.J. 366 ( 1995 )

Taylor v. Metzger , 152 N.J. 490 ( 1998 )

30-fair-emplpraccas-235-30-empl-prac-dec-p-33156-carole-a-gerdom , 692 F.2d 602 ( 1982 )

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