Adam Schorr’s Employment Case of the Week ending September 18, 2015

Schiavo v. Marina Dist. Dev. Co., 2015 N.J. Super. LEXIS 156 (App.Div. Sept. 17, 2015)

While the parties in this case may look unfamiliar, readers may know this case better as “BorgataBabes v. Borgata”. And after this ruling, the case may still be far from over.

The Plaintiffs in this case consisted of 21 women who worked as “BorgataBabes” for the Borgata Hotel and Casino in Atlantic City. BorgataBabes were overwhelmingly female, but there were male Babes as well. These employees received special privileges and benefits compared to other Borgata employees, but were required to follow stricter appearance policies than those employees. BorgataBabes were informed of the need to maintain their appearance at the time of application.

In 2005, Borgata updated their appearance policy that required each Babe to establish a baseline weight and determined that any Babe who increased in weight by 7% or more could be terminated. 19 of the 21 Plaintiffs were employed at the time of the policy and signed it. Two others were hired later and signed it at the time of hiring. By August 2008, nine of the Plaintiffs had been suspended for some period of time due to violating the policy, but the other twelve had not. No males had been suspended due to the policy. Eleven of the 21 Plaintiffs experienced negative comments or additional weigh-ins as a result of pregnancy or other medical conditions.

The BorgataBabes alleged that the policy itself was facially discriminatory, that the required costumes displayed gender stereotyping, that the policy was enforced in a discriminatory manner, and that there was a hostile work environment based on sexual harassment.

The Court found that 20 of the 21 Babes were time-barred from asserting that the policy was facially discriminatory. The Babe who was the last hired was within her two year period of seeing the policy and was not time-barred, but the Court found that the policy was not facially discriminatory because it applied its restrictions equally to both genders. Further, the Court found that the policy was not enforced in a discriminatory manner because Plaintiffs failed to show a single male who violated the policy and Defendants showed that they did occasionally weigh the men as well.

As to the hostile work environment claim, the Court found that a significant number of women had comments made about their pregnancies that could be found to be sexual harassment. The Court also found that managers became aware that customers sexually harassed some of the Babes but took no action to prevent such harassment from occurring. After noting the Supreme Court’s recent decision in Aguas v. State, the Court found that the Defendants failed to show that their anti-harassment policy was effective.
This decision holds that weight, in and of itself, is not a protected class. But when an employee is harassed or treated differently as a result of their weight, they may be protected in other ways. In this particular case, weight gain as a result of pregnancy was protected under gender discrimination. While this Court found that men and women were treated roughly equally under the policy, it is possible that if the facts reflected a more distinct treatment of genders, the Plaintiffs may have succeeded on some of their other claims. And although these Plaintiffs did not allege it, I believe many of them could have had a claim for disability discrimination as well, as many of them had medical conditions that were not fully accommodated or that resulted in harassing comments.

This case is susceptible to reversal on appeal to the Supreme Court with regard to the issue of gender stereotyping. While the Appellate panel found that the weight policy was neutral and that no men were overweight, the Borgata was clearly selling the sex appeal of the women, hence the name”BorgataBabes”. Since the stereotype “babe” is a thin woman, I find it impossible to understand how this is not gender stereotyping. The law on gender stereotyping has been very well developed as our Federal Courts have awkwardly applied Title VII’s protection against sex discrimination to discrimination cases involving gays and lesbians (see, eg, Prowel v. Wise Bus. Forms, Inc.).

It should also be noted that, while not the case here, there is protection for employees who are “morbidly obese”. Viscik v. Fowler Equipment Co. defined “morbidly obese” as obesity that prevents a person from engaging in normal activities. While these Plaintiffs did not qualify as morbidly obese, there may be other occasions where employees do qualify. Keep in mind that being able to perform the job functions is still a requirement under the NJLAD.

At the time of this writing, the decision has not yet been made whether the Plaintiffs will seek an interlocutory appeal to the Supreme Court. As always, we will update you if there are further interesting twists in this matter.