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| Healthworks claimed that its customers' privacy rights were protected by G.L. c. 214, ' 1B[4] ("privacy statute"), that within the public accommodations statute was an implied right of privacy for all women to exercise in an all women environment, and that the public accommodation statute was amended to protect women, not men. Specifically, Healthworks argued that a privacy right existed based on the customer gender preferences of Healthworks's membership. In support of its position, the Foster Court cited Livingwell (North) Inc. and Four Corners Health Clubs v. PA. Human Relations Comm'n., 147 Pa.Cmwlth. 116, 606 A.2d 1287 (1992), aff'd. without opinion, 533 Pa. 611, 618 A.2d 401 (1992), a case factually identical to Foster. In that case, the Commonwealth Court of Pennsylvania held that based on a "customer gender privacy" defense, an all women's health club would be permitted to exclude all men from its facility, stating that "[t]his defense recognizes a pervasive public policy that certain conduct that relates to and between genders is inappropriate." Livingwell, 606 A.2d at 1289. In determining that the membership had a privacy interest in exercising in a single sex club the court concluded that "they [members] expose parts of the body about which they are most sensitive, assume awkward and compromising positions, and move themselves in a way which would embarrass them if men were present." Id. at 1292. However, the public accommodations statute at issue in Livingwell provided an exception based upon Aa bona fide occupational qualification@. (Livingwell, 606 A.2d at 1289). In 1997, G.L. c. 272 '92A had no such similar exception. As a result of the scrutiny of the Court of all of the factors presented, the Court granted summary judgment to the Plaintiff based upon the conclusion that there was no genuine issue of fact. Healthworks admitted that it was a public accommodation as defined in G.L. c. 272 '92A, and the Court found that there was no legitimate privacy interest to be recognized or protected which would excuse the exclusion of men. As a result of the summary judgment decision in favor of the Plaintiff, the Legislature provided the requisite exception by enacting an Emergency Act, St.1998, c. 19, ' 1, approved Feb. 6, 1998, in the second paragraph, in cl. (10), in the first proviso, inserting "...to a place of exercise for the exclusive use of persons of the same sex which is a bona fide fitness facility established for the sole purpose of promoting and maintaining physical and mental health through physical exercise and instruction, if such facility does not receive funds from a government source...". Section 2 of St.1998, c. 19, provided: "The provisions of section 1 shall apply to all claims arising not earlier than three years before the effective date of this act which have not yet been filed, and to all other claims pending before the commission against discrimination or a court on the effective date of this act, including claims upon which final judgment or judgment after rescript has not entered or as to which a period to file an appeal, certiorari petition, petition for rehearing or similar motion has not expired on said effective date." Once again, the further modification of the statute to provide a special exclusion for same sex fitness facilities, under the proviso stated above, appears to reflect the intent of the Legislature to ensure that G.L. c. 272 '92A be interpreted broadly. Much like the 1971 and 1978 amendments cited herein which particularly excluded clubs such as the Boy Scouts and the Girls Scouts, the Legislature clearly understands the wide sweeping nature of the language, and protects against its limitation by providing specific statutory exclusions. The next significant interpretation of G.L. c. 272 '' 92A and 98, came with the November 28, 1998 Massachusetts Superior Court Summary Judgment decision in the case of Wanders v. Bear Hill Golf Club, Inc, et al, 1998 WL 1181150 (Mass.Super.) In that case, Plaintiff Diane Wanders, and other female Plaintiff members of the Defendant Bear Hill Golf Club, Inc., filed complaints with the MCAD under G.L. c. 151B, '9, alleging gender discrimination. The Plaintiffs, who were golfing members in good standing at the Defendant Club, sought repeatedly and unsuccessfully to play in weekend golf tournaments. Defendant denied their requests to participate in the weekend tournaments solely because of the Plaintiffs= gender. |
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