The bid by a majority of a group of twenty-one (21) plaintiffs, all former employees of the Borgata Casino Hotel & Spa, to overturn the dismissal of their sex discrimination and sexual harassment claims was recently rejected by the Appellate Division. The plaintiffs were employed as “Borgata Babes,” a specialized group of costumed beverage servers on the Borgata casino floor. As “Borgata Babes,” the plaintiffs were subject to specific “personal appearance standards” (“PAS”) that governed the plaintiffs’ dress, appearance, weight and overall grooming. While the plaintiffs in this case were all female, the “Borgata Babes” also included men who were subject to a similar PAS.

The trial court dismissed the entirety of the plaintiffs’ claims on summary judgment, finding that the PAS did not constitute gender stereotyping nor did it have a disparate impact on the female employees. In an opinion published on September 17, 2015, the Appellate Division readily agreed with the trial court’s ruling. However, the Appellate Division did reverse the dismissal of those claims asserted by some of the plaintiffs that the weight policy set forth in the PAS was applied in a discriminatory harassing manner by unlawfully targeting female employees returning from maternity and medical leave. Those claims were remanded back to the trial court for further proceedings.

Given the hotly-contested nature of this litigation, it is highly likely that the plaintiffs will next ask the New Jersey Supreme Court to certify the matter for appeal. Moreover, given the attention this case has garnered in the media as well as the somewhat novel factual circumstances giving rise to the claims themselves, there is a decent chance of the Supreme Court granting certification and hearing the appeal.

We will continue to monitor the case as it progresses, as its novel, broad-ranging issues could have an impact on various employers, such as restaurants, hotels, professional sports franchises and adult-oriented businesses.