Employer Obligations on Addressing Sexual Harassment in Fitness Facilities – JD Supra

For some, the gym is a sanctuary – an oasis. For others, the gym can be a nightmare, and an emotionally draining experience. Sexual harassment in fitness facilities is a rapidly growing problem, and one that can leave a lot of gym members feeling uncomfortable and frightened. How do we combat this? Do we encourage people to switch gyms? Do we tell people to just “ignore” the harassment? What obligations do gym-owners have to address such conduct?
According to an article by Barbend.com, survey studies show that women specifically have experienced widespread harassment in various types of training facilities, perpetrated by fellow members, trainers, and staff. In the survey, women described methods of addressing the harassment that have been met with mixed results, from reporting harassment to management personnel to changing the clothing they wore to the gym. An important takeaway from the study was that out of the over 1300 women who responded to the survey, only 12.8% of respondents reported always feeling safe in a training environment. This means 87.2% report having felt unsafe at the gym: 4 out of every 5 women gym goers.
There are three harassment scenarios that we will address: (1) an employee harassing another employee; (2) an employee harassing a gym member; and (3) a gym member harassing another gym member.
So, what does that law have to say about the responsibilities of those supervising these facilities regarding employee-on-employee harassment?
Sexual harassment violates federal law, state law, and the regulatory guidance of the Equal Employment Opportunity Commission, among other regulatory codes. Employees have a right to be free from any discrimination based on race, color, religion, sex, national origin, etc., and this right is federally protected under Title VII of the Civil Rights Act of 1964. Supervisors have basic responsibilities under these federal laws: among these responsibilities, is a duty to bring any unfair treatment or harassment to an employer’s attention. To prevent sexual harassment in the workplace, employers are required to implement some sort of grievance procedure and policy regarding discrimination. Utilizing this grievance procedure can be an effective first step in stopping harassment. If an employee does utilize said procedures, and the employer has not addressed the issue, there could be grounds to take legal action against your employer. An employer is liable for sexual harassment perpetrated by its employees if it knew or should have known of the harassment and has failed to take prompt remedial action.
What about an employee harassing a gym member? Just as employees have federally protected rights combating discrimination and unlawful harassment, Title II of the Civil Rights Act of 1964 provides that all persons shall be entitled to the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation, without discrimination or segregation. To ensure this right is not violated, the first step for gyms is to implement good policy for addressing instances as they occur. According to the Global Health & Fitness Association, a standard anti-harassment policy for a gym should include an explanation of their complaint procedure and make sure that both employees and members are able to take a complaint to more than one person. There should also be an explanation of the investigative procedure taken, and if the complainant does not wish to file a complaint, the supervisor to whom the complainant has mentioned the incident should continue to investigate the complaint and coordinate with the gym owner to document the incident.
Gym supervisors have a duty to make sure their patrons are reasonably comfortable and safe under the same regulations applicable to employee on gym member harassment. Thus, supervisors should follow the same procedures they would for any other individual harassed in their gym. Failure to act can lead to timely and costly litigation. For example, in 2015, a Tennessee man sued his local YMCA for gross negligence and ordinary negligence after being assaulted multiple times by a fellow gym member. The man alleged that the gym had known about similar allegations involving the accused prior to his complaints and sought to recover over $1 million from the incident. Although this man was unsuccessful in his efforts, this case is indicative of potential liabilities gyms face due to inaction and the importance of training gym staff to recognize inappropriate and harassing behavior.
Health and fitness should provide stress relief, socialization, and self-love – not uncomfortable interactions with strangers. For the sake of everyone who looks forward to their workout like many of us do a fresh cup of coffee in the morning, LET THEM LIFT!
 The Labor and Employment team wishes to gratefully acknowledge the significant contribution of Marquis Ward, a summer associate.
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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