NOT FOR PUBLICATION WITHOUT THE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,

PATRICIA TAYLOR, NOELIA LOPEZ,

CINDY NELSON, LATOYA WILSON,

AMY ASKINS, BRANDI JOHNSON,

TYRIA WILLIAMS, TARA KENNELLY,

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 

Before Judges Lihotz, Espinosa and St. John.

On appeal from Superior Court of New Jersey, 

Law Division, Atlantic County, Docket No. L2833-08.

APPROVED FOR PUBLICATION

September 17, 2015

APPELLATE DIVISION

September 17, 2015
2 A-5983-12T4

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 2000e17. Plaintiffs allege defendant's adoption and application of 

personal appearance standards (the PAS) subjected them to 
3 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 
4 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
5 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 
6 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. 
7 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 
8 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 
9 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"
10 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.
11 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. 
12 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.
13 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. 
14 A-5983-12T4

The remaining plaintiffs were never suspended for noncompliance 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 nondescript 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 noncompliance 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 
15 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 
16 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).
17 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 
18 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. 
19 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 
20 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 
21 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 
22 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 
23 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., 
24 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 
25 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.
26 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. 
27 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 
28 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 
29 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. 
30 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).
31 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 nonconforming 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 evenhandedly between men and women, even though the specific 
32 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 
33 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.]
34 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). 
35 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 
36 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). 
37 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 
38 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 
39 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. 
40 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.
41 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. 
42 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, genderneutral 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 
43 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 
44 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 nonmoving party."). 

Testimony relating what some men said or a plaintiff's 

observation of what she considered a significant weight gain by 
45 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 
46 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 
47 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 
48 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.
49 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 
50 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 
51 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. 
52 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. 
53 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 
54 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 
55 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 
56 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. 
57 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.