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| It is surprising that litigation on the issue of what is truly a public accommodations subject to G.L. c. 272'' 92A and 98 seemed to languished, given the holding in Concord, supra. The Concord Court seemed to apply an extreme level of scrutiny to the club in order to drag it into the authority of G.L. c. 272 '92A and thus G.L. c. 151B. It is not surprising, though, that it is women who are most detrimentally affected by the lack of identification of Aprivate@ clubs within the statute, and thus perhaps the reason why the issue has not been more vigorously pursued. It is also telling, given the observation above, that the next review of the statute as it applies to membership based clubs came in the Superior Court case of James J. Foster v. Back Bay Spas, Inc, d/b/a/ Healthworks Fitness Center, 1997 WL 634354 (Mass.Super.) In 1997, the Massachusetts Superior Court issued a summary judgment ruling in favor of the Plaintiff in the above case. In that case, Plaintiff James J. Foster filed an action requiring the Defendant, Back Bay Spas, Inc., to allow him to join the health club known as Healthworks, and petitioned for summary judgment in his favor. The Defendant Club, (Healthworks), opened its Back Bay facility in February 1996 and Plaintiff inquired about membership in February 1996. He was turned away because he was a man. Healthworks had a long standing policy that it did not allow men. As such, the Plaintiff argued that Defendant=s policy violated G.L. c. 272 '' 92A and 98, and G.L. c. 151B. Defendant argued in defense that Healthworks was developed and designed for use by women, and thus its programs and facilities--including locker rooms and restrooms--catered only to women. It argued that Healthworks, in addition to providing a full range of exercise equipment and facilities, offered various fitness and health classes tailored towards female concerns such as pre-natal programs and special nutrition counseling for women. Healthworks had also been contracted with the YWCA Boston so that its members could use its facility. Healthworks promoted itself as an all women's facility by its advertising and facility window displays. The Decision and Memorandum of the Court recites that affidavits submitted by Healthworks revealed that many of the Club's members based their decision to join and to remain members of the facility because it was female only. Healthworks also submitted the affidavit of Robert Tanenbaum, Ph.D., an expert on areas that impact exercise behavior and fitness including knowledge of gender differences, human sexuality, and reduction of performance anxiety. In his affidavit, Dr. Tanenbaum concluded that over 80% of the members he interviewed stated that the all-female aspect of the Club was the most important reason for joining Healthworks; that many of the members were of "post-childbearing age and had experienced bodily changes resulting from pregnancy and childbirth which altered their appearance ... older members who had recently gone through menopause ... felt intimidated exercising in a coed environment; " that many of the women expressed concern about being watched by members of the opposite sex while exercising; and, that several were recovering from past physical or sexual abuse, or had specific religious concerns about exercising in a coed facility. Most significantly, Dr. Tanenbaum concluded that "[approximately 87% of the women ... said that they would stop exercising at Healthworks if men were permitted to join.... Healthworks meets an existing need among the women described and minimizes the hurdles typically found in a coed setting, particularly for women who do not have a consistent fitness history." Healthworks stipulated that it was "a place of public accommodation" as defined by ' 92A. On its face, therefore, there was no dispute that the exclusion of males from this place of public accommodation was in violation of the public accommodation law, absent any exception within the statute. Healthworks claimed, however, that women had a privacy right to exercise in an all female environment. With that, the Court recognized that the central issue in the Healthworks case was whether a privacy right existed or could be read into the public accommodations statute in order to justify the exclusion of men from an all women's exercise facility. |
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