Question: EEOC v. Audrey Sedita, d/b/a Women's Workout World 755 F. Supp. 808 (N. Dist. Ill. E.D. 1991)

The employer, Women's Workout World (WWW), refused to hire males as managers, assistant managers, or instructors in the employer's exercise studio. Employer argued that being a female was reasonably necessary for the particular business. The court did not agree.

Williams, J.

The employer asserts that the jobs at issue require a substantial amount of physical contact with members' bodies and that they are exposed to nudity in the club locker room, shower, and bathroom, during orientation sessions when they show club facilities to new members. They argue that it would be impossible for WWW to reassign job duties in order to avoid intruding on members' privacy interests, since the conduct which infringes on privacy interests amounts to the essence of the jobs in question. EEOC argues that the essence of the jobs in question does not require employees to intimately touch health club members, or force employees to be exposed to nudity of members. They suggested WWW could hire male employees by changing the duties of the jobs in question, such as hiring females to assist clients who objected to being touched by males, posting a schedule to inform clients of when male employees would be on duty, or letting clients take themselves through the locker rooms.

The BFOQ exception is meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of gender. Hence, a defendant asserting a BFOQ defense has a heavy burden in terms of justifying his employment practice. An employer asserting a privacy-based BFOQ defense must satisfy a three-part test. First, the employer must assert a factual basis for believing that hiring any members of one gender would undermine the business operation. Second, the employer must prove that the customer's privacy interest is entitled to protection under the law, and third, that no reasonable alternatives exist to protect those interests other than the gender-based hiring policy. WWW contends a factual basis for their hiring policy exists because their clients have consciously chosen to join an all-female health club. They present the owner's testimony that members have, in the past, been disturbed by the presence of males in the club. We find that WWW failed to prove either that a factual basis exists for their discriminatory hiring policies, or that no reasonable alternatives exist to protect their customers' privacy interests other than sex-based hiring.

A defendant in a privacy rights case may satisfy its burden of proving a factual basis for sex-based hiring policies by showing that the clients or guests of a business would not consent to service of the opposite gender and would stop patronizing the business if members of the opposite gender were allowed to perform the service. This, WWW has failed to do. Also, WWW has previously hired males as "class givers," suggesting that there is no basis in the law for their present refusal to hire men. The EEOC's evidence of feasibility exists in the nation's other health clubs, which hire both genders, and allow members to be served both by assistants of their own gender and by members of the opposite gender. The purpose of WWW's business operation is to provide individualized fitness and exercise instruction to the club's women members. Hence, WWW must prove that they cannot achieve their business purpose without engaging in single-gender hiring. In response to EEOC's alternatives, WWW produced nothing more than the owner's assertions that the alternatives were not feasible because of the views of her clientele, and the difficulties of accommodating men in the health club. This is not strong enough to prove that no alternatives were feasible. WWW needed to provide evidence to prove their argument such as data on costs, studies on the feasibility of changing their present operation, or projections on the impact of such changes in terms of lost profits. The motion for PARTIAL SUMMARY JUDGMENT for EEOC is GRANTED.

1. Do you agree with the court's decision? Why or why not? Do you think the outcome would have been the same if the genders were reversed and females were prevented from working at the club?

2. If you were the employer in this case, what would you do?

3. Do you think Title VII was made to address this type of situation, that is, where a private commercial enterprise wishes to have a particular clientele served a particular way? Explain.