Employers Face Exposure Under Title VII When Contracting For Temporary Workers

On November 18, 2015, the United States Court of Appeals for the Third Circuit allowed an employee of a temporary staffing agency to proceed with employment discrimination claims against a company to which the staffing agency assigned him.  In Faush v. Tuesday Morning, Inc., Docket No.14-1452 (3rd Cir. 2015), the Court found that for purposes of Title VII of the Civil Rights Act of 1964 (“Title VII”), the worker successfully established that he was an employee of the staffing agency’s customer.

In this case, the staffing agency directly employed the worker, and assigned plaintiff to a customer for a 10 day temporary assignment.  The worker claimed that the customer discriminated against him based on his race while performing his duties.  Plaintiff asserted claims against the customer under Title VII, which prohibits employers from unlawfully discriminating against employees.  The Court found that the customer exerted enough control over the manner in which the worker performed his duties, so that it became an employer under Title VII.

In reaching this determination, the Third Circuit applied a test called the Darden test, which focuses on “the hiring party’s right to control the manner and means by which the product is accomplished.”  This “right to control” is based upon a consideration of the following factors: 1) skill required to perform the job; 2) who provides the tools; 3) location of the work; 3) duration of the relationship between the parties; 4) whether the customer may assign additional projects to the worker; 5) the extent of the worker’s discretion on when and how long to work; 6) wages/method of payment; 7) the worker’s role in hiring and paying assistants; 8) whether the work performed is a part of the customer’s regular business; 9) whether the customer is in business; 10) whether employee benefits are provided; and 11) the tax treatment of the worker.

The Customer’s Control Over Wages.  Here, the staffing agency set the worker’s rate of pay, paid wages, paid payroll and social security taxes, and maintained workers’ compensation insurance for the worker.  The staffing agency’s customer, however, also shared some responsibilities in connection with the worker’s wages.  First, the customer was obligated to notify the staffing agency if any minimum wage was owed to the worker.  Second, the customer agreed to pay overtime charges.  Third, the customer also obligated itself to pay for any changes arising from an increase in the staffing agency’s costs for wages, taxes, and insurance for this worker.  Fourth, the customer paid the staffing agency for each hour worked by the worker, at an agreed upon hourly rate.  The Third Circuit found that this method of payment indicated the existence of an employment relationship between the worker and customer.  The Court reasoned that in an independent contractor relationship, the customer would have paid a fixed rate to the staffing agency.  Instead, the customer indirectly paid the worker’s wages, plus an administrative fee to the staffing agency.

The Customer’s Control Over Hiring and Firing.  The staffing agency hired the worker and assigned him to this particular customer.  However, the customer reserved the discretion to find this worker suitable for the assignment and could also demand a replacement worker.  Therefore, the customer essentially exercised discretion over hiring and termination decisions.

The Customer’s Control Over The Worker’s Daily Activities.  The customer delegated assignments to the worker, directly supervised him, trained him, furnished equipment and materials, and verified the time he worked.   The customer also managed the temporary worker in the same manner as its employees.  Moreover, the worker performed unskilled tasks, similar to those performed by the customer’s employees.  Finally, the customer assigned the temporary worker to one of its stores, as opposed to working in a location controlled by the staffing agency.

The Customer’s Treatment Of The Worker.  The customer itself characterized the worker as a temporary employee, not an independent contractor.  In addition, the customer committed to providing the worker with a workplace free from discrimination and unfair labor practices, and also committed to complying with all employment laws.  Thus, the Third Circuit found that these protections were similar to those offered by an employer.

Based on the customer’s control over the worker’s wages, hiring and firing decisions, and daily work activities, and based upon its treatment of the worker, the Third Circuit found that the worker could proceed with his claim that he was an employee of the customer under Title VII.

Employer’s Take-Away.  Hiring a temporary worker exposes employers to potential liability under the employment discrimination and wage and hour laws.  Carefully review agreements with staffing agencies to ensure that the worker is treated as an independent contractor and not an employee.  Employers also need to review their protocols for all contact and assignments with temporary workers to ensure that they are not treated in a manner similar to that of employees.

For more information regarding this decision and to learn if your company’s treatment of temporary workers exposes you to liability, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practices Group, at dmastellone@genovaburns.com or Brigette N. Eagan, Esq., Counsel in the firm’s Human Resources Practices Group, at beagan@genovaburns.com.

Philadelphia Legislation Makes It Illegal for Single-Stall Bathrooms to Say ‘Men’ or ‘Women’

On November 19, 2015, Philadelphia Mayor Michael A. Nutter signed legislation making it illegal for public restrooms in city-owned buildings, as well as in privately-owned restaurants, hotels and other businesses with public restrooms, to have signs identifying single-occupancy bathrooms as for “men” or “women.” The new law, however, does not affect bathrooms with multi-stall or multi-occupant bathrooms. In signing the legislation, Mayor Nutter stated, “This legislation expands and strengthens gender-identity protections and is an important step in support of our LGBT community, especially our transgender community members.” All signage on applicable bathroom facilities must be changed by January 20, 2016, the legislation’s effective date.

The law will be enforced by the City of Philadelphia Department of Licenses and Inspections. Those establishments that do not change their signs face fines ranging from $75 up to $2,000 if they refuse to comply. Moreover, any establishments that do not comply can be reported via social media using the #freetophl hashtag. Individuals who encounter a non-compliant establishment can also report the violation to the Mayor’s Office of Lesbian, Gay, Bisexual and Transgender Affairs. Discriminatory practices should also be reported to the Philadelphia Commission on Human Relations.

Philadelphia is among the first major U.S. cities to implement this kind of policy. In 2006, Washington became the first city to require single-occupancy bathrooms be gender-neutral; Austin, Texas, and West Hollywood, California have since enacted similar laws.

For more information regarding how your business can implement this change as well as ensure compliance with OSHA’s Guidance For Transgender Bathroom Access, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.

Update On New York City’s Fair Chance Act And Notice Requirements For Criminal Background Checks

On July 2, 2015, we wrote about New York City’s newest law, the Fair Chance Act (“FCA”), and its prohibition on employers from conducting criminal background checks before extending conditional offers of employment.  On November 5, 2015, the New York City Commission on Human Rights (“Commission”) issued Enforcement Guidance on the FCA.  This Guidance clarifies the process that employers must follow when inquiring into an applicant’s criminal history.

Under the Guidance, after extending a conditional offer of employment, the employer may inquire if the applicant has a criminal conviction or a pending criminal case; run a criminal background check (after making proper disclosures and notices); and ask about the events surrounding any conviction.  While the Guidance permits these types of inquiries, it expressly prohibits an employer from withdrawing an offer of employment based solely on the existence of a criminal conviction.  Rather, the FCA requires an employer to undertake an analysis of specific factors, called the Article 23-A factors, and then follow the Fair Chance Process.

Article 23-A Analysis.  The employer may withdraw an offer of employment based on criminal history under one of two theories.  First, the employer may show that a direct relationship exists between the criminal conviction and the job at issue, which precludes employment.  The second theory is that employing the applicant “would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.”  To satisfy either theory, the employer must analyze the following Article 23-A factors:  1) NY public policy of encouraging employment of people with criminal histories; 2) the job duties at issue; 3) the relevancy of the conviction on the fitness for the new position; 4) the time elapsed since the events leading to the conviction; 5) the age of the applicant at the time of the underlying events; 6) information from the applicant in connection with good conduct/rehabilitation; 7) the employer’s legitimate interest in protecting property and the public; and 8) any certificate of good conduct.

If an employer seeks to rescind an offer of employment as a result of the Article 23-A analysis, it must then satisfy the Fair Chance Process.  This process entails providing the applicant with a written copy of any inquiry it made into the applicant’s criminal history, along with the date and time that it accessed the information and the results of that inquiry, and its written analysis (the Fair Chance Notice) of the Article 23-A factors.   For convenience, the Commission has prepared a Fair Chance Notice for employers, which can be accessed at:   http://www.nyc.gov/html/cchr/downloads/pdf/FairChance_Form23-A_distributed.pdfcan.

After proving this information, the employer must give the applicant 3 business days to respond and provide additional information.  After receiving any additional information from the applicant, the employer must consider it.  If the employer’s analysis remains unchanged, the employer must notify the applicant of that decision.

Employer Take-aways.  We anticipate that the Commission will aggressively enforce this new law.  Employers are cautioned to review their hiring materials and processes for compliance.  Ensure that no pre-offer documents contain any reference to criminal background checks.  Further, Human Resources staff and all individuals involved in the interviewing process should be trained on the Guidance.

For more information regarding the FCA and best hiring practices, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practices Group at dmastellone@genovaburns.com or Brigette N. Eagan, Esq., Counsel, in the firm’s Human Resources Practices Group at beagan@genovaburns.com.

Elizabeth Becomes New Jersey’s 10th Municipality to Pass Mandatory Paid Sick Leave

On November 3, 2015, voters in Elizabeth, New Jersey approved a ballot-box question requiring employers to provide paid sick leave by a vote of 3,037 to 563.  Elizabeth is now the 10th municipality in New Jersey since 2013 (Jersey City being the first) to pass a paid sick leave initiative.  The new law gives private-sector workers the ability to accrue up to 1 hour of paid sick time for every 30 hours worked, with a 40-hour-per-year cap for workers at businesses with 10 or more employees. A 24-hour-per-year cap would be in place for workers at businesses with 9 or fewer employees.  Anyone who comes into contact with the public as part of their work, though, such as food service and daycare employees, will be able to get five days a year, regardless of the size of the employer. In addition, significantly for organized labor, it would subject all of Newark International Airport to the law since one of its three terminals is located in Elizabeth.  The advocates of paid sick leave are hopeful that lawmakers in Trenton will be encouraged to enact a statewide initiative in 2016.

Four states — California, Connecticut, Massachusetts, and Oregon — have also passed sick leave laws.  The new law in Elizabeth will take effect on February 1, 2016.

For more information on the new ordinance, or for information on paid sick time laws in other jurisdictions, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.

New York Enacts Sweeping Protections Strengthening Women’s Rights in the Workplace

On October 21, 2015, New York Governor Andrew Cuomo signed into law sweeping legislation to protect and further women’s equality in New York State. The new laws, which go into effect on January 19, 2016, will help achieve pay equity, end discrimination based on familial status, and require reasonable accommodations for pregnancy in all workplaces.  The package of bills was part of Governor Cuomo’s Women’s Equality Act that was first introduced in 2013. The Women’s Equality Act amends the New York Equal Pay Act, the New York Labor Law, and the New York State Human Rights Law.

Employers should use the period from now until January 19, 2016 to assess their existing pay structure, employee handbooks, and human resources policies to ensure compliance with the new laws.

Women’s Equality Act

This bill (S. 1 / A. 6075) strengthens New York State’s law prohibiting employers from paying women less than men for performing the same work. The bill eliminates a loophole in the current law that allows employers to prohibit employees from discussing their salaries under threat of termination or suspension. Specifically, the bill allows employees to discuss their wages with each other. Further, the bill increases the amount of damages to 300% of unpaid wages available to an employee if an employer willfully violates the law and provides aggrieved plaintiffs with the opportunity to collect liquidated damages, as well as the potential to recover their attorneys’ fees in bringing such action.

Discrimination Based on Familial Status

This bill (S. 4 / A. 7317) amends the New York State Human Rights Law to prohibit discrimination on the basis of familial status, in addition to the current prohibition against discrimination on the basis of marital status. The new law also restricts employers from inquiring into or considering parental status when making employment decisions, such as those relating to hiring, firing, compensation, promotions, and/or raises.

Reasonable Accommodations for Pregnant Employees

This bill (S. 8 / A. 4272) requires employers to provide reasonable accommodations for employees with pregnancy-related conditions, including miscarriage, abortion, childbirth, and subsequent recovery. Reasonable accommodations are likely to include bathroom breaks, water breaks, time off for doctors’ appointments, and leaves of absence during periods of disability.

Protections for Victims of Sexual Harassment

This bill (S. 2 / A. 5360) protects all employees from sexual harassment in the workplace regardless of the size of the employer. Currently, the definition of “employer” excludes employers with fewer than 4 employees, thus prohibiting individuals from filing harassment complaints with the Division of Human Rights against those employers. This new law expands the definition of “employer” to cover all employers within New York State in sexual harassment cases so that an employee of any business can file a workplace sexual harassment complaint.

Recovery of Attorneys’ Fees For Sex Discrimination Claims

The law amends the New York State Human Rights Law to permit the recovery of reasonable attorneys’ fees for plaintiffs who succeed in proving sex-discrimination. Recent amendments also permit a successful defendant to recover attorneys’ fees where the defendant can show that the plaintiff’s claims were frivolous.

For more information regarding these changes and how your business can implement effective human resource polices prior to the January 19, 2016 implementation deadline, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.


Jersey City Council Votes To Require Business Owners to Provide Paid Sick Leave To Employees Regardless of Size

On October 28, 2015, the Jersey City Council voted 7-1-1 to adopt Ordinance No. 15.145 which requires employers with fewer than 10 employees, including part time and temporary employees who work at least 80 hours, to provide for up to 24 hours of paid sick time per year. In addition, once an employee has accrued 24 hours of paid sick time, they shall accrue unpaid sick time up to a maximum of 16 hours per year.  In addition, employees who have accrued both paid and unpaid sick time shall not be required to exhaust unpaid sick time before using compensated sick time. Ordinance No. 15.145 amends and supplements the Jersey City Municipal Code.

The Jersey City Council in 2013 was the first city in New Jersey to require private employers with more than 10 employees to provide paid sick time up to a maximum of 40 hours per year.  The new Ordinance takes effect on December 28, 2015, 60 days after enactment. Paid sick time begins to accrue at the commencement of employment and employees are permitted to use accrued sick time after the 90th day of employment.  Employers are also required to give individual written notice to each of their employees at the commencement of employment (or as soon as practicable if the employee is already employed on the effective date of the new law) and display a poster approved by the Jersey City Department of Health and Human Services in a conspicuous and accessible place. Employers also face fines for failure to post the notice and for each employee who did not receive the notice. Employers must also retain records for 3 years documenting hours worked by employees and paid sick time taken by employees.

Another important change is that the provisions of the new Ordinance shall not apply to employees covered by a Collective Bargaining Agreement (CBA) to the extent that such requirements are expressly waived in the CBA in clear and unambiguous terms. Nothing prohibits an employer from the adoption or retention of a paid sick time policy more generously than the one required by the new Jersey City ordinance. Maximum fines for non-compliance under the new law will also increase from $1,250 to $2,000 per violation.

For more information on the new ordinance, or for information on paid sick time laws in other jurisdictions, please contact Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.

Second Circuit Finds Facebook “Likes” Protected Under NLRA

On October 21, 2015, the Second Circuit clarified in Triple Play Sports Bar and Grille v. National Labor Relations Board that protections provided under Section 7 of the National Labor Relations Act (“NLRA”) encompass Facebook “likes” and comments so long as they are not sufficiently disloyal or defamatory towards the employer’s business. In Triple Play, several employees were involved in a Facebook discussion regarding their co-worker’s discovery that she owed income taxes to the state of Connecticut apparently due to her employer’s payroll tax withholding practices. When the employees’ communications on Facebook were brought to the attention of Triple Play’s owners, the employee who authored the original Facebook post and a co-worker who “liked” the Facebook status were terminated on the grounds of disloyalty. The employees thereafter filed suit and contended that they were wrongfully terminated in violation of the NLRA.

In its review, the National Labor Relations Board (“NLRB”) found that the termination violated Section 8(a)(1) of the NLRA, which provides for protections for employees by prohibiting an employer from interfering with, restraining, or coercing its employees in the exercise of their Section 7 rights. Section 7 of the NLRA guarantees employees “shall have the right to self-organization, to form, join, or assist labor organizations . . . and to engage in other concerted activities for the purpose of . . . mutual aid or protection.”  The NLRB found that Triple Play was unable to meet its burden of showing that the employees’ claims were maliciously untrue and that the obscenities used in the communication were detrimental since customers were able to view it. The NLRB also found that that the comments were made in the context of ongoing dialogue amongst employees about tax withholding as prior communication offline had taken place in the workplace. Thus, neither employee was acting outside of the scope of the NLRA’s protection in their online activities.

On appeal, the Second Circuit upheld the NLRB’s determination and found the employees’ terminations were improper. The Court noted that for a rule to violate Section 8(a)(1), it would have to explicitly restrict actions protected under Section 7. To determine this, the Court relied on a framework set forth by a previous NLRB case which requires a showing of one of the following: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

The Second Circuit also found that Triple Play’s Internet and Blogging Policy was vague and overbroad, and therefore violated the NLRA. The Court also determined that all Facebook posts hold the possibility of being viewed by clients; here, the comments were not directed at clients and were confined to a dispute amongst employees and Triple Pay. In affirming the NLRB’s decision, the Court noted that the original post did not constitute a defamatory statement and that the subsequent “like” and comment were not made to disparage Triple Play or to undermine its reputation. The Second Circuit recognized while there is a legitimate interest for a company to prevent disparagement statements about its products or services, communication that is connected to any ongoing labor dispute, even if later provide inaccurate, is protected under the NLRA.

For more information regarding this decision and how your business can implement effective Social Media Policies, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.

Good News for Employers: Requiring an Employee to Pay Back Salary is a Possible Remedy Against Disloyal Employees

On September 22, 2015, the New Jersey Supreme Court held that employers may recoup salary from disloyal and recently terminated employees even when the employer has not suffered any economic loss. In Kaye v. Rosefielde, the defendant, an attorney, was retained as outside counsel in connection with the plaintiff’s management of several timeshare business entities. Rosefielde was later hired as General Counsel and Chief Operating Officer for the company. During his tenure, he participated in six separate instances of serious misconduct including: the misallocation of interests in the formation of a new entity, the creation of a new entity under false pretenses and unbeknownst to Kaye, billing expenses incurred during a personal trip to Las Vegas, and multiple inappropriate sexual advances towards two female employees. Upon discovery of the misconduct, he was terminated and the company sued him alleging that that he was an “unfaithful servant” by willingly aiding and abetting competitors, he breached his fiduciary duty and engaged in civil fraud, legal malpractice and engaged in the unlicensed practice of law.  The company also sought equitable disgorgement, including the return of his salary as well as all payments, profits and disbursements that resulted from his misconduct.

The trial court found that the former employee breached his duty but declined to order disgorgement for the former employee’s compensation during the period of disloyalty.  The Appellate Division affirmed the lower court’s holding that the remedy of disgorgement was not available because the company was unable to prove actual harm.

On appeal, the New Jersey Supreme Court set forth a non-exclusive list of factors that should be analyzed determining whether or not equitable disgorgement of an employee’s salary is an appropriate remedy: (1) the existence of contractual provisions relevant to the employee’s actions; (2) the employer’s knowledge of, or agreement to, the employee’s actions; (3) the status of the employee and his or her relationship to the employer; and (4) the nature of the employee’s conduct and the effect on the employer.

The New Jersey Supreme Court determined that if the trial court finds in favor of the employer, the employer may then be entitled to an apportionment of the employee’s compensation but only for the time period of disloyalty; an employer may not be entitled to recover all of the employee’s total wages. In allowing a trial court to grant this type of remedy, the New Jersey Supreme Court suggested it will have a deterring effect on disloyal employees who blatantly disregard their fiduciary duties, particularly those operating in a senior capacity that adverse consequences will follow if they are found to have breached their fiduciary duties.

For more information regarding this decision and to learn if your company may seek the remedy of equitable disgorgement, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.

Employers May Not Deny FMLA Leave Requests Without Allowing an Opportunity to Cure a Deficient Medical Certification

On September 17, 2015, the New Jersey Appellate Division emphasized that an employer has “modest burdens” to not only advise employees of their rights under the Family and Medical Leave Act (“FMLA”), but also must advise employees of any deficiencies in medical certifications and provide an opportunity to cure.

In Hansler v. Lehigh Valley Health Network, the plaintiff submitted a medical certification requesting leave for two days per week for one month following a variety of health-related issues. The certification lacked the nature or duration of the condition, but did specify the length of time requested.  Several weeks later, the plaintiff was terminated for absenteeism.  When the plaintiff mentioned her submission of the medical certification, the defendant informed the plaintiff that her request had been denied.  Following her termination, plaintiff was diagnosed with diabetes and high blood pressure.  Plaintiff alleged that Lehigh Valley Health Network interfered with her substantive rights to medical leave and that she was terminated in retaliation for seeking leave in violation of the FMLA.  The trial court held that the medical certification was invalid and that Lehigh Valley Health Network was not required to afford the plaintiff time to cure the defect.  In granting Lehigh Valley Health Network’s motion to dismiss, the trial court found that since the official diagnosis of the plaintiff’s medical condition occurred post-termination, it was of no consequence.

The Appellate Division reversed the decision of the trial court and found that insufficiency alone is not enough to deny a FMLA leave request outright.  The Appellate Division held that employees must not only be notified of what additional information is required but also be allotted a period of time to cure any such defect.  The Court also noted that the post-termination diagnosis did not affect the determination of whether the medical certification was insufficient since, had the defendant requested more information, the plaintiff’s physician would have been in a position to provide the same.  Because the plaintiff was not notified of any deficiencies, she was not provided with a cure period, and thus, the Appellate Division remanded for further proceedings consistent with its ruling.

Employers’ Takeaways: 

  • Under the FMLA, an employee must give notice of the request, including a reason for the request. To be considered “sufficient,” an employee’s medical certification must include: (1) the date on which the serious health condition began; (2) the probable duration of the condition; (3) the relevant medical facts; (4) a statement that the employee is unable to perform the functions of their position; (5) the dates and duration of any planned medical treatment; and (6) the expected duration of intermittent leave.
  • Upon receiving an insufficient or incomplete FMLA leave request, employers are required to: (1) advise employees that the certification is insufficient; (2) state in writing what additional information is necessary to cure the deficiency; and (3) provide the employee an opportunity to cure the certification before denying the request.
  • An employer may deny the request for FMLA if it has provided the employee with seven calendar days to cure any such deficiency and the employee has failed to do so.
  • An employer may not interfere with, restrain, or deny the exercise of or an employee’s attempt to exercise rights under the FMLA.

For more information regarding this decisions and best practices regarding FMLA, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.

Borgata Babes: Casino Is Entitled to Enforce Weight Restrictions

On September 15, 2015, the Superior Court of New Jersey, Appellate Division found in Shiavo v. Marina District Development Company, LLC, that the New Jersey Law Against Discrimination (“NJLAD”) does not encompass allegations of discrimination based on weight, appearance, or sex appeal.

In seeking to stand out from other casinos in the area and to serve as the public face of the establishment, the Borgata Casino Hotel & Spa in Atlantic City created a specialized group of male and female costumed beverage servers (“Borgata Babes”) beginning in 2003. The personal appearance standards (“PAS”) requirements required male and female workers to be physically fit, with their weight propitiated to height, and have a healthy smile. The PAS also contained gender-specific requirements in terms of physical features. Upon accepting employment, the Borgata Babes contractually agreed to adhere to the standards. The servers wore outfits distinct from other staff members as well as had access to special benefits and paid time. In 2005, the Borgata updated the PAS in order to clarify the original requirement to maintain approximately the same appearance from time of hire. Barring medical reasons, the new requirements allowed weight increases within a 7% standard weight standard.

In 2008, twenty-two cocktail servers, known as “Borgata Babes”, brought suit against the Borgata alleging the corporate PAS constitute gender stereotyping and gender role discrimination in violation of the NJLAD. The Borgata Babes alleged that the PAS was, on its face, discriminatory and in violation of the NJLAD; the PAS weight standard imposed unlawful gender stereotyping; the defendant’s disparate enforcement of the weight standard resulted in gender bias sexual harassment; the PAS weight standard had a disparate impact upon females; and the Borgata’s conduct in enforcing the PAS created a hostile work environment. The trial court granted the Borgata’s motion for summary judgment finding that the Borgata’s hiring process made clear the positions were meant to be part entertainer and part cocktail server, all of the women signed statements agreeing to the weight policy, which the trial court found lawful and reasonable.

On appeal, the Appellate Division agreed and found that while the NJLAD protects broad categories of protected individuals from unlawful discrimination in the workplace, there is no protected class based solely on one’s weight.  Thus, the NJLAD do not protect employees from employer policies that require both men and women to remain fit and within a stated weight range.  The Appellate Division, however, also ruled that some waitresses could go back to the trial court to determine if they were subjected to a hostile work environment regarding how casino managers enforced those standards, especially against women returning from medical or maternity leave.

While Michigan is the only state that specifically bars discrimination based on weight or height, some cities, including Binghamton, New York, Madison, Wisconsin, and Santa Cruz, California also have similar protections.

For more information regarding this decision and best practices, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@genovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@genovaburns.com or 973-533-0777.