                 NOT FOR PUBLICATION WITHOUT THE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,             APPROVED FOR PUBLICATION
PATRICIA TAYLOR, NOELIA LOPEZ,
CINDY NELSON, LATOYA WILSON,             September 17, 2015
AMY ASKINS, BRANDI JOHNSON,
TYRIA WILLIAMS, TARA KENNELLY,           APPELLATE DIVISION
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 September 17, 2015

          Before Judges Lihotz, Espinosa and St. John.

          On appeal from Superior Court of New Jersey,
          Law Division, Atlantic County, Docket No. L-
          2833-08.
           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 2000e-

17.   Plaintiffs allege defendant's adoption and application of

personal   appearance     standards       (the   PAS)    subjected    them       to




                                      2                                   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




                                            3                                      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




                                       4                                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




                                         5                                  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.



                                   6                              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




                                        7                                     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




                                               8                                      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"




                                               9                                     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.



                                            10                                   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.



                                         11                                      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.



                                            12                                  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.




                                        13                                A-5983-12T4
      The    remaining         plaintiffs          were    never     suspended        for       non-

compliance        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          non-

descript     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 non-

compliance 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




                                               14                                      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




                                     15                                  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).




                                               16                                      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




                                             17                                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.




                                             18                                   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




                                               19                                   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




                                      20                                   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




                                             21                                    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




                                             22                                       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.,




                                       23                                   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



                                         24                            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.




                                    25                              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.




                                     26                             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




                                      27                                 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




                                           28                                       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.



                                             29                                 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).



                                         30                                    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 non-

conforming       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         even-

handedly     between        men     and     women,      even    though       the       specific




                                               31                                      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



                                         32                                        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.]




                                      33                             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).



                                       34                                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




                                          35                                   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).




                                      36                                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




                                        37                                    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




                                        38                                   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.



                                         39                                    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.




                                          40                                    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.



                                     41                                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,       gender-

neutral    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




                                             42                                     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




                                        43                           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 non-

moving party.").

    Testimony          relating    what     some    men    said   or    a    plaintiff's

observation of what she considered a significant weight gain by




                                            44                                   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




                                               45                                  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




                                             46                                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




                                              47                                        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.




                                              48                                    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




                                        49                                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




                                     50                                      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.




                                            51                                   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.




                                                52                                         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




                                           53                                 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




                                             54                                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



                                            55                                   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.




                                              56                                     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.




                               57                       A-5983-12T4
