Jacqueline Schiavo v. Marina District Development
442 N.J. Super. 346, 123 A.3d 272 (2015)
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Rule of Law:
An employer's personal appearance standard that includes a facially neutral weight policy does not, in itself, violate the New Jersey Law Against Discrimination (LAD). However, such a policy may give rise to a hostile work environment claim if its enforcement involves severe or pervasive harassment targeting employees based on gender-specific conditions like pregnancy or post-partum recovery.
Facts:
- Marina District Development Company, LLC, operating as the Borgata Casino, created a 'BorgataBabes' program featuring costumed beverage servers to cultivate a 'Las Vegas-style' brand image.
- All individuals hired as BorgataBabes, both male and female, agreed to adhere to strict Personal Appearance Standards (PAS) as a condition of employment.
- In February 2005, Borgata modified the PAS to include a weight standard, requiring that employees not increase their baseline weight, established upon hiring, by more than 7%.
- The modified PAS provided for exceptions and accommodations for employees with a 'bona fide medical condition' or pregnancy.
- Plaintiffs, a group of female BorgataBabes, were subject to the PAS and its weight standard.
- Between 2005 and 2010, twenty-five female BorgataBabes were suspended for failing to comply with the weight standard, while no male BorgataBabes were suspended.
- Several plaintiffs alleged that supervisors subjected them to harassing comments and actions related to the weight policy after they became pregnant, returned from maternity leave, or developed documented medical conditions.
- Specific instances of alleged harassment included supervisors questioning the legitimacy of pregnancies, making derogatory comments about post-partum bodies, rejecting medical documentation, and suggesting a new mother pump breast milk to meet the weight requirement.
Procedural Posture:
- Jacqueline Schiavo filed a complaint in the Superior Court of New Jersey, Law Division, alleging the Personal Appearance Standards (PAS) violated the New Jersey Law Against Discrimination (LAD).
- Numerous other female employees filed similar complaints, which were subsequently consolidated into a single action under Schiavo's docket number.
- Defendant Marina District Development Company, LLC (Borgata) moved for summary judgment to dismiss all of plaintiffs' claims.
- The Law Division judge granted Borgata's motion, dismissing the complaint in its entirety.
- Plaintiffs appealed the grant of summary judgment to the Superior Court of New Jersey, Appellate Division.
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Issue:
Does a casino's personal appearance standard, which requires male and female costumed beverage servers to maintain their baseline body weight within a 7% range, violate the New Jersey Law Against Discrimination (LAD) as facially discriminatory, disparately applied, or as creating a hostile work environment through its enforcement?
Opinions:
Majority - Lihotz, P.J.A.D.
No and Yes. The personal appearance standard is not facially discriminatory or disparately applied as a matter of law, but its enforcement created a triable issue of fact for a hostile work environment claim. The court determined that any claims challenging the facial validity of the PAS were time-barred by the two-year statute of limitations, as the policy's adoption was a discrete act. The LAD does not prohibit discrimination based on weight alone, and the 7% weight standard was facially neutral, applying equally to men and women. Plaintiffs' claims of disparate treatment failed because they lacked competent evidence, beyond anecdotal accounts, to prove that the policy was enforced more leniently against men. However, the court reversed the summary judgment on the hostile work environment claim. It found that several plaintiffs presented sufficient evidence of severe or pervasive harassment that occurred 'because of their gender.' The alleged conduct, including demeaning comments related to pregnancy and post-partum recovery, was not about weight per se but was targeted at women due to gender-specific conditions, which a reasonable woman could find altered the conditions of employment and created an abusive working environment.
Analysis:
This case establishes a critical distinction between a facially neutral employment policy and its discriminatory application under the New Jersey LAD. The court affirmed that employers have the right to impose reasonable, non-discriminatory appearance standards, and that weight is not a protected class. However, the decision significantly clarifies that a facially valid policy cannot be used as a shield for harassing conduct that targets employees based on protected characteristics or related conditions, such as sex and pregnancy. This ruling provides a crucial pathway for plaintiffs to challenge otherwise legal policies by focusing on the 'as-applied' conduct of supervisors, ensuring that enforcement practices are scrutinized for discriminatory animus.
