Jacqueline Schiavo v. Marina District Development

NOT FOR PUBLICATION WITHOUT THE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