*1 Department if the had fulfilled could be states charge year each retaliatory calculate the discretion on imposed that state on the burdens state based each in the granted The discretion companies. Pennsylvania method computation the stated was curbed calculations pur- light underlying In charge. maximum and the statute, adequate there are language and the pose of Reve- Department and restrain the guide standards delegation of is not an unconstitutional nue, and the statute power. correctly and applied that the statute was
Having decided Executive, retaliatory charge we find the constitutionally of Revenue is correct. Department imposed by
ORDER 1992, NOW, the order of the day April, this 6th AND R-8794, Revenue, and Docket No. Board of Finance is entered for the Commonwealth judgment and affirmed in the Company Life Insurance against Executive and costs $200,635.38, together with interest amount of for the amount of subject to credit according law filed hereto paid exceptions heretofore unless charge thirty days. within
v. RELATIONS PENNSYLVANIA HUMAN COMMISSION, Respondent. Pennsylvania. Court of Commonwealth Argued Sept. 1991. April 1992.
Decided *2 Westchler, petitioners. D. Jonathan Hardiman, Counsel, respondent. Michael Asst. Chief CRAIG, Judge, DOYLE, COLINS, President and Before PALLADINO, McGINLEY, PELLEGRINI, JJ. SMITH
PELLEGRINI, Judge. (North), LivingWell Inc. and Four Comers Health Clubs (Penn/Del), referred to LivingWell) ap- Inc. (collectively final order of the peal Pennsylvania from a decision and (Commission), Human Relations Commission which deter- had LivingWell mined that violated continued to violate (Act),1 Section 5 of the Human Relations Act Pennsylvania refusing to admit men to their all-women health club facilities, and ordered to cease and desist dis- crimination on the basis of sex with respect to those facili- ties. 27, 1984, July
On the Commission filed a complaint (Elaine Powers) against Figure Elaine Powers Salons alleg- ing that Elaine Powers violated the Act by excluding men *3 from in its membership fitness clubs and to by failing employment consider men for in certain positions.2 The filed this complaint, though Commission even had not from any complaints alleging received men discrimination Elaine After by investigation Powers. of the allegations cause, in December of 1984 finding probable the Com- mission to attempted through resolve the matter confer- ence, conciliation and persuasion, but was unable to do so. 1985, In May of the Commission notified Elaine Powers that public hearing approved. a had been hearing, 1985,
Prior to the in March of Elaine Powers was Houstonian, Inc., acquired by changed its name to Inc. LivingWell, LivingWell, Inc. is the parent company of LivingWell (North), Inc., which owned and operated the acquired fitness facilities 11, Houstonian until October time, 1989. At (Penn/Del), that Four Corners Health Clubs Inc., Inc., a subsidiary LivingWell, became the owner and Act, 27, 1955, amended, 1. Section 5 of the Act of October P.L. 955(i)(l). 43 P.S. § LivingWell changed policy 2. Because Elaine Powers' at the Commis- only hiring employees, sion’s behest of the Commission did not female pursue employment allegations complaint. related in its Four Cor- LivingWell and of the facilities.3 Both operator time complaint in the at the named as parties ners were Commission. hearing before the that wom- LivingWell argued hearing, Commission At the environment, to in an all-female right a exercise en have is with to consistent right and that a woman’s ille- conduct otherwise discriminatory recognition Act’s that a membership that within the extent gal permissible is fide occu- class of constitutes bona particular individuals however, Commission, The (bfoq). pational qualification anis occupation qualification fide determined bona matters, employment applies only exception involving customer in a situation normally not warranted rights. recognized privacy unless with preference associated no was determined that there The Commission further Living- exercising, and recognized privacy right regarding of the on in violation discriminating was based Well cease and ordered Act. Commission then its regarding of sex desist discrimination on basis from that membership. LivingWell present appeal filed the order. right exists
The issue now before us whether Human exception Pennsylvania 5 of the as an Section Act, men the exclusion of all permit Relations which would facility. an all-women’s from exercise 5 following: Act, provides Section P.S. § practice, unless based discriminatory It shall be unlawful occupational a bona upon qualification____ fide *4 (i) owner, lessee, any person being proprietor, For the any of manager, superintendent, agent employe or accommodation, to: public of resort or amusement place Refuse, from, (1) deny any person or withhold color, sex, creed, race, religious ancestry, of his because Clubs, by ten are Four Corners Health 3. Of the sixteen facilities owned by only, are use both for use four available for available males and None females basis, strictly alternating coed. females on and two are bar, provide juice or restaurant area of the facilities a snack bar networking place takes between members. where 120 or origin handicap disability____any
national
or
of the
accommodations,
advantages,
privileges
facilities
accommodation,
place
such
resort or amuse-
public
added).
(Emphasis
ment.4
recognized
the
bfoqs
One of the
courts have
is that there
are
involving
certain situations
the individual sexes that
of the
opposite
warrant
the exclusion
sex
rea
sons.
have referred to
cases as
The courts
these
“customer
preference”
cases because
desires of
customers and
not
or employers
are
issue. Because
employees
at
relationship
charged
between
customer and
party
intertwined,
are so
that relationship
charged
entitles the
defense. Griswold v. Connecti
to raise
party
cut,
85
(1965);
381 U.S.
S.Ct.
121 uncomfortableness of the working difficult because ing of such conduct. See Section as a result experiences person 2, 1964, 42 Rights Act of July VII of the Civil 703 of Title 2000e-2. U.S.C. § in an defense gender privacy” “customer
To establish a developed a situation, the federal courts have employment A charged satisfy. must party that three-prong test believing must a factual basis establish business sex would undermine its excluding of one not members are privacy customers’ interests that its operation; business law; and that no under the reasonable protection entitled to inter- protect privacy customers’ alternative exists Sedita, (1991). F.Supp. v. 808 ests. U.S. E.E.O.C. gen legitimizes defense certain privacy Because this discrimination, extremely it is an narrow one and der-based upon the consideration of whether customers is not based certain gender perform preconceived either desire that an airline that customers roles. a claim male Rejecting attendants, flight preferred employment of female Fifth v. Airways, Circuit Diaz Pan American World Inc., (5th Cir.1971) 442 F.2d held: public’s expectation
While we of one recognize that particular difficulty, sex in a role cause some initial may it anomalous we were to allow the totally of the to determine preferences prejudices customers was, it to a whether sex discrimination was valid. Indeed extent, Rights] large very prejudices these Civil [1964 Thus, feel customer Act was meant to overcome. we it into when preference may be taken account company’s inability perform primary based on it function service offers. Diaz, preference”
Unlike the “customer advanced recognized privacy those cases which have customer of a expression as a defense are on the customer’s based expressed legitimate interest. customers, due to modesty, involves situations where the opposite present find it uncomfortable have the sex condition in which find them- physical they physical selves or the activity engaged are *6 entity. customers at business These customers would be embarrassed humiliated cared for or observed by the opposite members of sex. of the cases such a to
Typical
upholding
gender
defense
is City
Philadelphia
discrimination
v. Pa. Human Rela
of
Commission,
500,
tions
7 Pa.Commonwealth Ct.
300 A.2d
In
(1973).
case,
97
we found that customer gender
a valid
to not
hiring
was
defense
staff members of
sex to
opposite
act as counselors in a male or female
juvenile facility.
recognized
We
that a juvenile’s “privacy
required
interest”
be violated if
to
to
would
submit
a body
search, disrobe and
in front of
shower
a staff member of
sex,
and that
opposite
juveniles would be better
able
problems
discuss emotional
someone
with
of
same sex.
brought
Cases
substantially
provisions
under the
similar
1964,
Rights
Title
Act of
42
VII
Civil
U.S.C.
seq.
recognized
2000e
have
et
also
that there is a custom
§
er preference privacy right
gender-based
defense to
discrim
See,
ination.
e.g.,
Home,
Fesel
447
v. Masonic
F.Supp.
(D.Del.1978)
mem.,
(3rd
1346
Cir.1979)
123 entering upon janitors female infringed using men were while in male bathhouse duties performing Ctr., 1191 F.Supp. 510 Medical Baptist Backus v. facility); room labor (need personal privacy (D.C.Ark.1981) genitalia exposed constantly intimate contact with where System, v. Dale Maintenance BFOQ); Norwood justified BFOQ (male (N.D.Ill.1984) Inc., F.Supp. washroom attendant for men’s of washroom position building). office being defense is not case is that
Unique to this case, rather but discrimination employment advanced all of case. While accommodation discrimination in a discrimination, the Commis- *7 employment these cases involve private a activi- distinctly where there is sion concedes that parts, there exists body of intimate involving exposure ty qualification public bona fide accommodation implied sex Oth- illegal discrimination. justify otherwise may notes, segregated such sex ac- erwise, Commission as the bathrooms, and locker showers such as commodations Consequently, to rooms, open public. to have be would same, reasons are the policy and the the rationale if a valid to determine the same considerations apply we will in re- defense exists preference privacy right customer public of place of discrimination at a charges sponse to accommodation.
A. excluding males to a factual basis In order show facilities, Living- it incumbent on its was from all-female admitting men that before the Commission Well to establish a This factor is operation. undermine its business would claimed on market-place validity check type discrimina involving employment interest. In cases frequent not that customers would tion, showing them, it evi if sex attended opposite establishment gender privacy is based need for that the customers’ dences right to so that the on sincere and honest belief a patronize that establish- they that would not fundamental ment, merely not a preference have to see a they a gender perform certain certain role. a Similarly, situation, accommodation adverse effect of customer operation on the business verifies preference justifica- that tion for discrimination based a upon strongly held belief seeing preference perform rather than one sex role, but not strongly certain so customer would no if longer frequent the establishment the oppo- members of site sex were admitted.
Here, LivingWell offered uncontraverted from testimony customers and employees regarding adverse effect that LivingWell’s opening all-female facilities men would have on its business. The customers all testified that the pri- mary they LivingWell reason chose was that its facilities were for women only, coming cease if particular facility club became coed. women, testified that employees many upon joining the club, primary informed them that their reason exercis- ing LivingWell, facilities, at rather than other was because Moreover, it only open was to women. the President of LivingWell testified well that there would a substan- tial loss membership LivingWell was required accept male customers.
Confirming these the expert observations was testimony Tanenbaum, of Dr. Robert a psychologist specializing in *8 “appearance matters.” Based upon of Living- interviews members, Well Dr. Tanenbaum testified that 50% the members exercising interviewed stated that in an all-female environment was the decisive and primary reason choos- Moreover, ing LivingWell. he testified that of the 82% members interviewed indicated that in exercising an all- female important factor, environment an was but not the choosing join LivingWell. reason to no countervailing
Because presented, evidence was the obligated Commission was to find LivingWell’s busi- ness required undermined it was accept to male customers, and that maintaining all-female facilities was fundamental to its business.
B. under- would be that its business proving In addition customers, LivingWell had also accepting male mined by legitimate have a their female customers establish In wheth- protection. examining interest in need privacy crite- protection, interest deserves privacy er customer’s right whether a determining those used ria similar to cases that Generally, those are considered. exists privacy a protected has a customer dealt with whether have into consideration: interest have taken privacy (cid:127) involved; interest privacy of the the nature (cid:127) in; being engaged the activity nature of (cid:127) advanced; being it is sincerity with which (cid:127) will be person to the who harm that will be caused prefer- of a customer based application affected defense; ence
(cid:127) not overriding public policy reason whether there is being interest advanced.5 recognize privacy legiti- have a that their customers LivingWell contends single in a sex club exercising mate figures aspects of their exercising upon focuses doing exercises to improve. While they wish to which body about they expose parts reshape figures, their sensitive, com- assume awkward and they are most which way themselves positions, and move promising were present. them if men would embarrass contends, however, that the nature of The Commission protec- is not entitled to interest advanced here compromising or no matter how awkward tion because exercising, her himself while person finds position “intimate issue unless an protected privacy there is no The Commission body actually exposed. area” of commonly not preferences “modesty” that customer argues brief, Commission, some of pages and 33 of its have listed at 5. The gender privacy whether a used to determine the identical factors *9 interest exists. are by society justify held irrelevant a gender-based discrimination.
Simply all cases until now have because discussed the of or exposure touching body “intimate areas” of the does each a not mean that lacks privacy interest in The problem determining all other situations. in what in “protected” is that societal conduct this area is not or rational. we private, consistent What believe is humili- us or makes us ates uncomfortable comes from societal norms and standards of “acceptable” conduct. What is on time, place that context is based and circumstances. For example, individuals who would wear generally acceptable revealing pool attire at the beach or would be likely totally humiliated to be walking seen down a public street their much revealing nightwear. less What this indicates norms, relation one’s body, i.e., there are societal spectrum of which one modesty, respects, either follows or one is required value, to breach a modesty one becomes humiliated or mortified.
Privacy especially protected interests are involving a per- son’s “body,” clothed unclothed. As court stated City Philadelphia, 7 Pa.Commonwealth Ct. at A.2d at n. 8: recognizes
Griswold v. Connecticut certain individual rights not specifically enumerated within the Bill of Rights. Having inspected one’s body members opposite sex may invade the individual’s most fundamen- tal privacy right, right one’s own body. LivingWell’s customers they testified that were sensitive having about men observe their bodies while exercising. If men perform exercises, saw them their they testified that feel would self-conscious and uncomfortable about themselves and would not continue to be members of Liv- ingWell. In uncontradicted testimony, Dr. Tanenbaum tes- it tified that be would detrimental to these women to exercise in front of men: it would
Psychologically very unhealthy experience it generate shame, anxiety, and embar- *10 is of self-awareness rassment, painful a level or disabled feeling disfigured of experience to the likened there exposed is and vulnerable that one in the sense perception can be done to alter lot that a whole isn’t difficult and stressful very a It is of the observer. way. in that spot on the be experience 182a-183a.) Record at (Reproduced women’s bodies of these “intimate areas” because Just do not have a not that does mean exposed are not The uncontrovert- recognition.6 privacy worthy interest admitted, these women if men is that were ed evidence embarrassment, anxiety or from extreme suffer would LivingWell. at continue to exercise stress and would not interest as it relates privacy a recognizing The standard one where there is protecting is not limited to one’s body area,” right may but such a of an “intimate exposure has a reasonable basis recognized where one also be dignity or suffer a loss of protected against embarrassment taking place. activity is privacy interest not believes that the The Commission no reasonable basis these women have justifiable and a not find as whole would society embarrassed because feel Privacy sex. opposite it to exercise with objectionable denomi- the lowest common by are not determined interests What appropriate. considers modesty society nator of that find person a reasonable would is determinative whether and sin- legitimate interest person’s privacy that claimed in the cere, Nothing not held. though commonly even seriously chal- nor does the Commission supports record do hold these beliefs sincerely that women not lenge these find these beliefs not person or that reasonable legitimate. exists, whether right
Even balancing is determined worthy protection separate changing rooms in 6. To hold would mean otherwise factories, change sites where workers from mines and construction areas” and back and where “intimate are street to work clothes clothes permitted. exposed, would not be not against any that interest harm caused to the excluded men. harm the Commission advances is that the men not to exercise will be allowed at certain loca- However, tions. the Commission admits that there are other facilities just convenient where men can exercise in a coed environment. Unlike discrimination that males, in the non-hiring would result or where an exer- cise has other establishment facilities where business or conducted, “networking” is no any harm exists to male by *11 being LivingWell’s excluded from facilities.
Although exist, privacy may whether it is protected is determined by whether there is an overriding public that policy outweigh that privacy interest. The exclusion of males from LivingWell’s all-female facili- ties in would result no harm to men if a public policy existed in the Act requiring men, the inclusion of and that policy any interest,” would not overrule “privacy no matter how legitimate or sincere. While the Commission has not advanced any public policy males, reason for inclusion of other than excluded, se, “because males are per against it is public policy,” this court has previously articulated the public policy outlawing behind laws gender-based discrimi- nation in City Philadelphia:
Laws forbidding discrimination in hiring on the basis sex purport do not all erase differences between the sexes. recognize These laws there are jobs which one sex is inherently and more biologically quali- fied than those of the sex. opposite biological The differ- ence between men and women turn produce psychological differences are the facts that limit- justify ing personal contact under intimate circumstances to those of the same sex. 510,
7 Pa.Commonwealth Ct. at n. 300 A.2d at n. 7. argument recognizing that a privacy interest to exer- single cise in a sex facility somehow patronizes women by impermissibly protecting them is illogical both and demean- ing. is illogical It because at the base of that is Anew an ossified and stereotypical Anewthat men do not share simi- It is also view not warranted. lar interests —a separate- desire to exercise demeaning to those women who they have somehow “weak” because ly because are than others. modesty by sense of held a different developed acceptable standard of only one It infers there or re- not be tolerated any and variation should behavior senses of That can have different spected. individuals others should be acknowl- as to their bodies than modesty there are held and where edged sincerely reasonably one is countervailing being protected no interests.7 No this interest because those recognizing case free to in a are do who to exercise unisex environment want is the freedom to protection being so. The afforded one sense of choice to have different make that like impose. than the Commission would modesty Backus, Moreover, quoting court as the federal district Discrimination-Sex, Larsen, from Employment A. § (3d Ed.1980), stated: purpose necessary point
It at this to stress that the eliminate Rights sex the Civil Act is to provisions make over not to employment, sex discrimination *12 personal mores and sensitivities accepted image in the more uninhibited people American fa- or court or com- by any particular vored commission added.) (Emphasis mentator. at F.Supp. 1195. legitimate interest has raised and privacy
Because a been considerations, has overriding LivingWell es- there are no by employing LivingWell acceded the Commission 7. Just because duties, men, admittedly their Commission with some limitation on longer present, LivingWellcan no that men are now contends argue because permitted upon based that male should not customers ignores employee gender privacy. This contention customer has a different relationship male to the member than a customer trust, occupies employee position of can be have. An moni- privacy rights subject importantly, termination. More tored and interconnected, right is examined in a are not but each claimed upon rights separate balancing countervailing based test parties involved. protected that a privacy tablished interest exists for women who want to exercise at an all-female facility.
C. cases, Finally, employment discrimination if even exists, legitimate job duties can be modified to accommodate interest and still em- ploy gender claiming discrimination, BFOQ then a does not exist. Because it is impossible to allow men to be present and, while these women are exercising, at the same time protect right their to privacy, no reasonable alternative protect exists to LivingWell’s customer’s privacy interests at while the same time accommodating male members. Accordingly, has established that a legitimate privacy interest exists and if disallowed would undermine its operations business and there would be no practical way to impact, ameliorate its the decision of the Commission is reversed.
ORDER NOW, AND 7th day April, the order of the Pennsylvania Human Relations Commission dated Novem- 21, 1990, ber P-2099, Nos. E-30106 and is reversed. PALIADINO, Judge, dissenting.
I dissent. respectfully The majority concludes that there is a prefer- customer ence defense which justifies unquestioned gender-based discrimination this case. I note respectfully cases relied upon by the majority uphold a customer preference gender-based defense to discrimination all in- volve an employment problem. doubt, Without a this case is a problem, accommodation not an employment *13 problem. This case concerns the participation by members in public an exercise program at a business establish- ment, not the hiring firing of employees, or anything else associated with employment. preference customer the fact that the recognition
In the problems, employment applied has been defense de- preference customer extend majority proposes fide upon a bona problems accommodation public fense qualifica- This theory. qualification public accommodation discrimination” illegal sex otherwise “may justify tion is a “where there public accommodation places exists exposure of intimate involving private activity distinctly However, this Opinion at 123. Majority body parts____” body parts. of intimate exposure involve the case does not exercise, which is an activity, Rather, this case involves full home, setting, and in group a performed outside therefore, so “dis- cannot be activity, This exercise attire. men the exclusion of all as to tinctly private” justify so prefer- facility upon based customer from exercise public a ence. fide accommodation
As of the bona validity body of intimate exposure hinges upon qualification In all so, too, defense. preference does the customer parts, the custom- uphold majority of the cases cited defense, body parts of intimate exposure preference er legitimate priva- interest. This legitimate privacy creates a Thus, discrimination. justifies is what cy interest case, majority in the justify present the discrimination interest exercise legitimate privacy attempts to create exposure of though not involve the activity does even parts. body intimate legitimize exercise as majority attempts to LivingWell of several female through testimony The female of Dr. Tanenbaum. testimony
members and the patronize the longer no they testified that would members coed because if the facilities became facilities in the presence to exercise be embarrassed psycholog- testified that it would males. Dr. Tanenbaum in front of for these women to exercise detrimental ically concludes that testimony, on this men. The based majority, in an all-female exercising this interest though even held, the interest commonly not be may environment *14 a legitimate nevertheless privacy interest because it is held. sincerely
However, can legitimate, neither be nor the relied on testimony credible because males are in present fact at the facilities where these women exercise. of At two out the three facilities which the females who men patronize,1 positions testified are in employed ranging manager from and service personnel to aerobics instructor. Fact, Stipulations addition, of D. In Exhibit Dr. Tanen- on testimony baum’s was based the interview of eighteen female members from three different facilities. facilities, allAt three of these men are in employed posi- manager, trainer, tions such as aerobics instructor and lifeguard. Fact, Stipulations of D. Exhibit job restrictions these male employees involve the taking of members, measurements the female to, unless consented and exclusion from Stipulations the women’s locker room. Fact, Therefore, No. 85. majority’s the conclusion that gender-based justified discrimination is in this case because “it is impossible to allow men to present these while and, exercising, women are the at same time their protect right to is privacy” totally at odds with testimony the the record. Majority 130. Opinion at
As illustrates, the quote above the majority striving “protect” supposed privacy interest the female Liv- ingWell by perpetuating gender-based members discrimina- tion at these LivingWell However, facilities. what majority perpetuating reality is an antiquated notion regarding the status of women society. antiquated That notion best was articulated by Judge President Ludlow of the Court Philadelphia of Common Pleas of County in an 1884 case motion involving a admission a woman into practicing bar. He stated denying motion: universe, Creator of the for a reason which any
[T]he being ought reasonable self-evident, to consider made a Although testimony 1. there Cynwyd was no actual from the Bala member, facility stipulated counsel that she would offer same testimony as the other three members who testified. sexes, propa- fit in the and saw between
distinction sex weaker protect physically species gation of governing general other and laws laws as inflexible protection under the universe, place female, general as a simply male sex living organisms all created applicable law universal *15 requires protection. female the 14 Wkly.Notes Kilgore, Mrs. C.B. Application In re of 255, (1884). Cas. in time from away a century almost we are now
Although statement, not as far obviously arewe Judge Ludlow’s have, past century, over the Women away thought. and have this “shield of protection” off managed to cast But to of men’s. society equal roles assumed when equality to maintain that continue cannot women keep- to women purport “protect” such as decisions unequal. separation inherently separate, ing them SMITH, dissenting. Judge, by Majority and espoused extraordinary If views were theory privacy” of “customer its creation Commonwealth, the of this to the law represent permitted would be combatting discrimination compelling interest again invidi- once rear its compromised may severely throughout the public accommodation places head in of ous Commonwealth. has declared of this Commonwealth legislature Act, 43 P.S. Human Relations Pennsylvania 2 of the
Section this Common- policy of it shall be § discrimination possible eradicate wherever wealth to persons which “undermines groups against persons state”; pursuant and free democratic foundations Act, 43 it shall unlawful 5 of the P.S. to Section § in this case. Abso- the circumstances under discriminate in any Act or or intent language in the nothing lutely upon by Majority cases relied employment-related Act’s prohibi- exception legitimately support can discrimina- justify has carved out Majority tion which places tion in of public accommodation. To extend “priva- cy right” to a woman’s purely and voluntary personal choice to exercise at LivingWell reshape figure her unquestionably outside the ambit one of the most basic principles fundamental of law.
v. ASSOCIATION, BEAR INC., Appellee. CREEK LAKES CIVIC Commonwealth Pennsylvania. Court of
Argued Dec. 1991. April
Decided 1992.