We are OPEN and PREPARED. In response to the COVID-19 pandemic, our Firm is utilizing telephone consultations whenever possible. We are equipped with technology for working remotely, as necessary, and are committed to continuing to serve our clients through this difficult time. Please connect with us on Facebook for the latest employment-related information dealing with COVID-19.

COVID-19 RESOURCE CENTER FOR NJ EMPLOYEES

Appellate Division Overturns Summary Judgment in New Jersey Employment Discrimination Case Based on Appearance

The New Jersey Superior Court, Appellate Division has revived a lawsuit alleging employment discrimination on the basis of gender under state and federal laws. The plaintiffs allege that a set of “personal appearance standards” (PAS) maintained by their employer, an Atlantic City casino, discriminated on the basis of gender. They further claim that the defendant enforced the PAS in a harassing manner. The case has followed an unusual path. In 2015, the Appellate Division partially reversed a Law Division order granting summary judgment to the defendant. The Law Division proceeded to grant summary judgment to the defendant again in July 2016. The Appellate Division reversed the Law Division’s order in May 2019. It found that the Law Division was bound by the 2015 ruling and that the court erred by dismissing the case on remand. The appellate court remanded the case once more, ruling that “after a decade of motion practice and appeals, plaintiffs are entitled to their day in court.”

State and federal employment statutes in New Jersey prohibit employment discrimination on the basis of sex and gender. Court decisions and statutes have defined multiple forms of unlawful sex discrimination. These include “hostile work environment,” a form of sexual harassment in which pervasive and unwelcome sexual remarks or behavior render an employee unable to perform their job duties. Discrimination on the basis of “sex stereotyping,” in which an employer takes an adverse action against an employee because they do not fit certain stereotypes about members of their sex, is also unlawful. In some situations, employees can establish violations of anti-discrimination laws based on the disparate impact of a policy or practice, even if the employer did not intend to discriminate on the basis of sex or another factor.

The plaintiffs in the above-described lawsuit worked as “costumed beverage servers.” They had to agree to the PAS as a condition of employment. The PAS mandated specific features like “a natural hourglass shape” for women and “a natural ‘V’ shape with broad shoulders and a slim waist” for men. The defendant reportedly modified the PAS in February 2005 in order “to elucidate the ‘weight proportioned to height’ standard.” The revised PAS stated that employees’ weight could not increase by more than seven percent, as compared to their weight when they were hired. Weigh-ins occurred at seemingly random times. These changes formed the basis of many of the complaints leading to the lawsuit.

Twenty-one women sued the casino for alleged sex stereotyping discrimination, hostile work environment, and disparate impact. After the trial court dismissed the plaintiffs’ complaint, the Appellate Division partially reversed that order in 2015. It found that the trial court had properly dismissed the sex stereotyping claims, mostly on procedural grounds. It reinstated the plaintiffs’ claims for hostile work environment, finding that the plaintiffs had produced sufficient evidence that the defendant enforced the weight policy “in a discriminatory, harassing manner, targeting women returning from maternity and medical leave.”

On remand, the Law Division granted summary judgment on the sexual harassment claims again in July 2016. The plaintiffs appealed anew, arguing that the Appellate Division’s 2015 ruling “was binding on the trial court.” The Appellate Division agreed in a per curiam opinion issued in May 2019. While the 2015 ruling stated that the remand was “for further proceedings,” this ruling specified that the remand was for trial.

The knowledgeable and experienced workplace harassment attorneys at the Resnick Law Group represent workers in New Jersey and New York. Contact us today online, at 973-781-1204, or at 646-867-7997 to schedule a confidential consultation to see how we can help you.

Contact Information