Whether it is modern restaurant establishments like “Hooters” (and other similar chains) that rose to fame in the 1990s, or more vintage businesses like the Playboy Clubs of the 1960s, some businesses have offered visitors female employees dressed in tight and/or revealing uniforms for many decades.
Whether they are/were employing “Hooters Girls” or Playboy “Bunnies”, these kinds of employers are obviously seeking to create a certain atmosphere at their businesses. However, is there a point at which the rules imposed by this type of employer may constitute a form of illegal harassment or discrimination under New Jersey law? A recent ruling from the Appellate Division court indicates that the answer may be “yes.”
The recent case involved 21 women who worked as “Babes” at an Atlantic City casino and spa. At the casino, Babes, who worked as beverage servers, could be male or female. The program required all Babes to adhere to strict appearance standards. Male Babes were expected to have broad shoulders and a slim waist. Female Babes were required to maintain a “natural hourglass shape.”
Later, the employer added a requirement that all Babes maintain the body weight they had upon their hiring, and increase their body weight by no more than 7%, unless there was a medical reason for the weight gain.
According to the women who sued, the employer did not apply its standards fairly. Female Babes were often subjected to unannounced random “weigh-ins,” while the male beverage servers were not, according to the complaint. Additionally, some women alleged that they suffered adverse employment actions due to their weight gain, even though they had experienced a pregnancy or other legitimate medical condition that contributed to their change in size.
Allegedly, two women experienced hostility and adverse actions at work that were related to their pregnancies, one suffered at work after she gained weight due to a new asthma medication whose side effects included weight gain and a third gained weight due to the post-surgery medications she was taking. Additionally, one woman made allegations of offensive comments, such a statement that female Babes who get pregnant should never return to the job “because they get fat.”
This, according to the court, gave the employees a potentially viable case of employment discrimination under the NJLAD. New Jersey law allows certain employers to demand certain appearance standards from some employees, provided it is consistent with normal industry standards and customer expectations. In other words, a risqué wings-and-beer establishment can, generally speaking, require its servers to wear low-cut tank tops and short shorts. What that employer can’t do, however, is use its appearance rules as cover for engaging in disability discrimination or discrimination based on pregnancy or pregnancy-related conditions. The women’s assertions and evidence were sufficient to demonstrate that they had an arguable claim of discrimination, so they were entitled to their day in court, according to the Appellate Division.
One important thing that you should take from this is that you should never assume that your choice of profession somehow necessarily makes you unable to seek recovery for harassment or discrimination. A “Hooters Girl” can still be victim of disability discrimination if her employer punishes her for her disability-triggered weight gain. An exotic dancer can still be victim of sexual harassment. Don’t merely assume; instead, bring your facts and your information to a skilled lawyer who can give you knowledgeable advice. The experienced New Jersey employment attorneys at Phillips & Associates are here to talk to you and outline your options for you. Contact us online or at (609) 436-9087 today to set up a free and confidential consultation and to find out how we can help.