Jacqueline Schiavo v. Marina District Development ( 2015 )

NOT FOR PUBLICATION WITHOUT THE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