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Friday, October 9, 2015

Can You Be Fired If You Don't Maintain Employer’s Physical Appearance Standards?

In New Jersey, that depends on whether the employer is applying standards that illegally discriminate against a class of employees that is protected by law, such as based on sex, disability, pregnancy, etc.

The State Appeals Court of New Jersey ruled this week that an Atlantic City casino has the right to regulate the weight of its cocktail servers reasoning that the employer’s regulations were in keeping with industry standards and that they did not discriminate based on gender or sex by doing so. But even this ruling in favor of the employer carved out some exceptions.

The case in question involves Borgata Casino's personal appearance standards which not only includes strict dress codes and grooming requirements, but prohibits servers from gaining or losing more than 7 percent of their body weight while employed at the establishment. Violating any of these appearance requirements is grounds for termination. The weight requirement applied to men and women cocktail servers, the  “Borgata Babes”,  alike.

The twenty-one Plaintiffs, who are present or former employees of the Borgata Casino Hotel & Spa, appealed from the dismissal of their complaint alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et. Seq. The Plaintiffs alleged the employer’s adoption and application of Personal Appearance Standards (“PAS”) subjected them to illegal gender stereotyping, sexual harassment, disparate treatment, disparate impact, and as to some, resulted in adverse employment actions.

Both female and male plaintiffs, when applying for work, had originally consented to the provisions of the challenged PAS which included the grooming, dress code, and weight provisions. The Appellate court found the standards in the PAS were reasonable in light of casino industry standards and customer expectations. Eleven of the plaintiffs also sued the casino alleging that these standards subjected them to a hostile work environment.

The employees of the casino, both men and women, are informed of and required to agree to, the casino's personal-appearance policy at the time they are hired.  The PAS prohibits both male and female servers from gaining or losing more than 7 percent of their body weight while employed at the establishment. Violating any of these appearance requirements is grounds for termination. 
None of the male plaintiffs alleged they were fired for gaining more than 7 per cent of their body weight.

The Court did recognize that requiring application of the PAS weight standard when medical or pregnancy conditions occur can be illegal by discriminating against disabled or pregnant persons. Although the Appellate Court upheld the legality of the standards of the PAS, the Court nevertheless did recognize that certain plaintiffs, whose lack of compliance resulted from documented medical conditions or post-pregnancy conditions, presented a material dispute of facts regarding application of the PAS weight standard resulting in harassment because of their gender. As to those claims, the Appellate Court reversed the summary judgment which had dismissed their complaint and remanded the  matter to the lower court as to those claims.  As to all other claims, the Appellate Court affirmed in favor of the employer.

As described in the Court Opinion, Schiavo v. Marina District Dev. Co., A-5983-12T4 (N.J. Super. 9-17-2015) at 6-7, the Borgata's recruiting brochure for prospective employees described its image of the cocktail waitresses, "Borgata Babes" 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

     Part fashion model, part beverage server, part charming host and
   hostess. All impossibly lovely. The sensational Borgata Babes 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. Borgata Babes do look fabulous, no question. But
   once you can breathe again, prepare to be taken to another level by
   the Borgata Babe 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?

The Court described in the opinion that the Plaintiffs had full notice of what was expected of them when they applied for the job and agreed to adhere to the PAS with its strict grooming, behavior, dress code and weight requirements. The Court stated:

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 Borgata Babes 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.
Borgata Babes were to deliver excellent customer service and create a feeling
of "upscale classiness, sensuality, and confidence to build customer
The men and women chosen as Borgata Babes 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."
Schiavo at 7-9.

The Court also noted that the employer, the Borgata, considered the Borgata Babes’ job description to include their working as entertainers similar to performance artists or cheerleaders:

Ambassadors of the Borgata's "stylish brand of hospitality." 
Borgata Babes 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
Borgata Babes "high-profile entertainment positions [similar to] professional
cheerleaders and models — careers which require a certain appearance to
portray a certain image to the public." Starting in 2004, Borgata Babes could
voluntarily participate in the "Babes of Borgata Calendar," a marketing
publication containing photographs of twelve female Borgata Babes, 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 Borgata Babes wore distinctive, custom-fitted
costumes, designed by Zac Posen. All Babes were fitted with costumes issued
by defendant's wardrobe department. Unlike other employees, Borgata Babes
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.
Schiavo at 9.

Every discrimination case has its own unique facts. This Court recognized that across-the-board applications as to standards for employees may be illegal if it discriminates against certain employees with certain conditions. It is significant, and demonstrates the complexity of discrimination claims, that the Court reversed and remanded the dismissal of claims of harassment as to certain plaintiffs whose lack of compliance resulted from documented medical conditions or post-pregnancy conditions. The Court recognized this presented a material dispute of facts regarding application of the Personal Appearance Weight standards resulting in harassment because of their gender. As to those claims, the Court reversed and remanded the summary judgment that had dismissed those complaints. As to all other claims, for the reasons discussed in the  opinion, the Court affirmed the lower ruling in favor of the Borgata.

Hope A. Lang, Attorney at Law, represents employees throughout New Jersey in complex employment discrimination lawsuits. She accepts cases from all counties in Northern, Southern, and Central New Jersey and has locations in central, western and northern New Jersey to meet with clients. If you believe that you have been discriminated against due to gender identity or other protected characteristic, such as age, disability, pregnancy, race, religion, sex, sexual orientation or national origin, or in retaliation for reporting what you believed to be illegal acts of your employer,  she can help you. It is important to know your rights as an employee. 

Contact Hope A. Lang, Attorney at law, for a free consultation.

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