Hot Button Issues Could Create Legal Liabilities for Unprepared Health Club Owners

The case of Kim Davis, the Kentucky county clerk who refused to provide marriage licenses to same-sex couples, may seem like an issue far removed from the health club industry, but the fitness industry has faced situations in the past few years involving transgendered people, breast-feeding and religious expression inside their walls that may have left some unsure of how to respond.

The American landscape is changing. More Americans say they support same-sex marriage and other constitutional rights for gay, lesbian and transgender people than ever before, according to a recent Pew Research Center study and a recent Gallup Poll. The United States has nearly 700,000 transgender people. All but one state now allows women to breast-feed in public. And the Muslim population is the fastest growing religious group in the world, according to the Pew Research Center.

These changes mean that club owners may soon find themselves, if they have not already, facing some unfamiliar situations in which they must contend with personal opinions that may conflict with state and federal laws or with the views of their members, which ultimately could affect their bottom line.

Laws and Leanings

Brian Heermance, partner at Morrison Mahoney LLP in New York, has worked on health club cases involving sexual harassment or broken equipment but has yet to work a case involving religious freedom or gender issues. Despite that, some club owners have asked his advice about what to do about some of these hot button topics.

"You may feel, based on your religious beliefs, that allowing someone with a different sexual orientation isn't what you want in your club, but for business reasons, it might be pertinent to allow them," Heermance said.

Further, a health club is considered public accommodation, said Tom Margolis, a Madison, Wisconsin-based attorney who has handled many gym injury cases, and health club owners may face legal ramifications depending on how they respond inside their facility to sensitive issues. (Read Margolis' article on how to mitigate risk.) Black's Law Dictionary defines public accommodation as "a business that provides lodging, food, entertainment, or other services to the public." Discrimination laws governing each state vary widely, but the Federal Civil Rights Act of 1964 said discrimination in a privately owned place of public accommodation is prohibited on the basis of race, color, religion or national origin. 

Forming a Policy

Several club owners and attorneys who practice in the fitness arena declined to comment for this story, but the ones who did comment cautioned that when beholden to laws, it may be more prudent for a club owner to avoid legal battles—or, if the law is unclear, potential damage to your reputation.

"You're in business to make money and take care of customers," Heermance said. "If you're going against the law for personal reasons, be prepared for a lawsuit. If there is no statute or case law governing the field, what makes good business sense?"

Heermance said club owners should weigh these issues just as they would all other risk-management issues, such as premises liability and product liability.

"You may never have a suit from a woman who claims she was kicked out for breast-feeding, but it doesn't mean you shouldn't think about it," Heermance said.

Margolis said that staying mindful of issues in the news often helps illuminate areas where policy may be incomplete or entirely absent.

"A fitness facility should have policies in place for all aspects of their business that have legal ramifications," he said. "If they wait to handle things when they occur, as opposed to before they occur, the damage could already be done."

Prominent Cases

In February, a Planet Fitness in Midland, Michigan, made headlines for discontinuing the membership of a woman who complained repeatedly—and warned other members—about a transgender woman in the women's locker room. The transgender woman in question, Carlotta Sklodowska, was visiting the gym with a friend. According to news reports, Sklodowska inquired about Planet Fitness' locker room policy for transgendered people when she entered the facility.

"You use the locker room that corresponds with how you are dressed," she said the Planet Fitness employee told her

The complainant, Yvette Cormier, was in the women's locker room at the same time as Sklodowska and complained about Sklodowska's presence in the locker room to the front desk. She was told of the company's locker room policy. She complained that Planet Fitness did not offer a family-friendly environment, and in March, she brought a suit against the facility. In July, Planet Fitness and the Planet Fitness franchisee filed to have the suit dismissed, but the case was still pending as of publication.

"If you identify as a woman, you should be allowed in women's spaces. It's really that simple with me," said Charin Davenport, a gender and culture professor at two Michigan colleges and a transgender person who is also an activist.

This spring, Davenport told a Las Vegas TV station that it would be wrong for Planet Fitness to have to notify its customers of transgender members because it "could be construed as negative." Davenport said that she uses women's bathrooms and locker rooms often without complaint.

Breast-feeding within public accommodations is another sensitive issue fraught with legal complexities.  

"[It is] another example of a sensitive issue wherein gym owners need to understand federal, state and local law to determine how sensitive issues are handled," Margolis said.

Forty-nine states, the District of Columbia and the Virgin Islands have laws that specifically allow women to breast-feed in any public or private location. Idaho is the odd one out.

In 2012, Lori Painter was asked to retreat to the restroom of a Blast Fitness in Webster, Texas, to breast-feed her 13-month-old son, who was in the daycare area at the time. (The gym later apologized and reversed its decision.)

In 2014, Monique Golueke, a member of LA Fitness in Oceanside, California—where 92.8 percent of mothers breast-feed for some length of time, according to the CDC—was escorted out of the club in tears after breast-feeding her son in the locker room.


These situations are tricky with no cut-and-dry solutions, Heermance said.

"Perhaps you have a third bathroom [for nursing mothers or transgender people], but how do you run a club with those kinds of costs?"

And if a club goes that route, he said, "We could become more segregated than perhaps we should be."

Special accommodations can indeed create cost issues for clubs, but a San Diego YMCA in 2012 arranged for women-only swim hours for a group of East African women whose Muslim faith dictates they may not swim in front of men. Earlier this year, the Y opened a new pool with a glass enclosure around it that caused concern from the women about being seen by male members in swim attire. At this time, the Y is not offering the swim hours for the Muslim women. 

"Swimming may not be a protected civil right, but public access is," Davenport said.

In February, Senegalese refugee Mohamed Fall was at the center of a controversy at LA Fitness in Oakley, Ohio, after the man, who is Muslim, said he was asked to stop praying in the men's locker room at the gym.

"I want to make sure that this doesn't happen to another person whether you're Islam or Christian or whatever religion you practice," Fall told a local news station at that time. A Muslim LA Fitness employee later filed a statement in district court saying he and other employees didn't tell Fall he could not pray at the gym, only directing him to another area of the facility where he could pray without obstructing other members. The lawsuit alleges otherwise.

Staff Training

For club staff, Davenport suggested sensitivity training and workshops, which are often free from LGBTQIA organizations or GLAAD. Local colleges or universities also have alliances or professors that may be willing to speak to gym staff, she said.

Margolis agreed: "The staff should be involved from the standpoint of being educated on issues that could have a legal impact on the health club. Discriminating against a same-sex married couple, for example, by even one uninformed staff member could lead to legal action against the gym, as well as potentially much damage to the gym's reputation from word of mouth and/or negative publicity."