## Facts

- Borgata Casino employed costumed beverage servers known as “BorgataBabes” to project a branded image.
- As a condition of employment, BorgataBabes agreed to detailed “Personal Appearance Standards” (PAS) emphasizing grooming, fitness, and maintaining a weight within a defined range of their hiring weight.
- Borgata disciplined or suspended multiple female BorgataBabes for alleged PAS violations; plaintiffs alleged no comparable discipline of male BorgataBabes under the weight policy.
- Twenty-one female servers sued under the New Jersey Law Against Discrimination (LAD), asserting that the PAS and its enforcement constituted sex discrimination, gender stereotyping, hostile work environment/sexual harassment, disparate treatment, and disparate impact.
- Plaintiffs alleged humiliating enforcement practices (including weigh-ins and body-related comments) and asserted they were targeted when experiencing pregnancy-related weight changes or gender-specific medical conditions.
- The Law Division granted summary judgment to Borgata on all claims, concluding the PAS were “reasonable” appearance standards permitted by N.J.S.A. 10:5-12(p).
- Plaintiffs appealed.

## Issues

1. Whether the LAD permits an employer’s appearance and weight-maintenance standards under N.J.S.A. 10:5-12(p), and whether the LAD recognizes claims based solely on weight, general appearance, or sex appeal.
2. Whether summary judgment was proper on plaintiffs’ LAD theories of sex discrimination, gender stereotyping, hostile work environment/sexual harassment, disparate treatment, and disparate impact.
3. Whether evidence that enforcement targeted pregnancy or gender-specific medical conditions created triable issues of fact under the LAD.

## Decision

- The Appellate Division affirmed in part, reversed in part, and remanded.
- The court held the LAD does not provide an independent cause of action for discrimination based solely on weight, general appearance, or sex appeal.
- The court held that appearance standards may be lawful under N.J.S.A. 10:5-12(p) if reasonable and not otherwise discriminatory, including where employees agreed to them as conditions of employment.
- The court reversed summary judgment for certain plaintiffs whose evidence could support a finding that PAS enforcement and related comments targeted them because of pregnancy or gender-specific medical conditions, creating triable issues on hostile work environment and related sex-based claims.
- The court affirmed dismissal of claims that, on the record presented, were premised only on aesthetic preferences or otherwise lacked sufficient evidentiary support.

## Legal Principles

- The LAD does not, by itself, prohibit adverse treatment based solely on weight, attractiveness, general appearance, or sex appeal absent linkage to a protected characteristic.
- N.J.S.A. 10:5-12(p) permits employers to impose reasonable grooming, dress, and appearance standards, but those standards remain subject to the LAD’s bar on discrimination.
- A facially neutral appearance or weight policy can violate the LAD if enforced in a manner that targets employees because of sex-related traits, including pregnancy, or gender-specific medical conditions.
- Hostile work environment claims under the LAD turn on whether conduct could be found severe or pervasive and whether it occurred because of a protected characteristic; credibility disputes and competing inferences commonly preclude summary judgment.

## Conclusion

The Appellate Division upheld the general permissibility of reasonable appearance standards and rejected LAD claims based solely on weight or sex appeal, but it required further proceedings where plaintiffs presented evidence that enforcement practices and comments targeted them due to pregnancy or gender-specific medical conditions, supporting triable sex-based harassment and related claims.


Schiavo v. Marina Dist. Dev. Co., 442 N.J. Super. 346 (App. Div. 2015)