CHARLES MALECKI, Complainant

VIC TANNY INTERNATIONAL OF WISCONSIN, INC., Respondent

An Administrative Law Judge for the Equal Rights Division of the Department of Industry, Labor and Human Relations issued a decision in the above-captioned matter on September 21, 1991. Respondent filed a timely petition for review by the Commission and both parties submitted written arguments.

Based upon a review of the record in its entirety, the Labor and Industry Review Commission issues the following:

1. Vic Tanny is a business which operates health clubs in the Milwaukee area, including clubs in Brookfield, downtown Milwaukee, Cudahy and West Allis. Admission is open to the public upon payment of a uniform membership fee.

2. Complainant, Charles Malecki ("Malecki") is a male who became a member of Vic Tanny in Milwaukee in 1987. He continued his membership through at least February 1990.

3. Vic Tanny health clubs have separate showers and dressing rooms for males and females.

4. The shower rooms for males and females are the same size and have the same number of shower heads. However, in the shower rooms for females, there are aluminum partitions between the shower heads.

5. The dressing room areas for males and females are the same size. However, in the dressing room area for females, there are a number of separate changing enclosures in which individuals may change; there are no such separate changing enclosures in the men's dressing room area. In the area of the men's dressing room which corresponds to the area of the women's dressing room in which the separate changing enclosures are located, there are additional lockers which are not present in the women's dressing room. There are eight additional lockers in the men's dressing room for each separate dressing enclosure in the women's dressing room.

6. Both the men's and women's locker rooms have a separate shower stall accessible to handicapped persons, and both have toilets in enclosures with doors.

7. Vic Tanny has received no complaints from female customers about inadequate locker space, but it did receive complaints from female customers about limited privacy availability when remodeling limited the privacy available in changing and showering, and there have been occasional complaints from women about other female patrons they considered to be immodest about nudity in the changing area.

8. With the exception of the charge filed by Malecki with the Equal Rights Division, Vic Tanny has received no complaints from male customers about inadequate availability of privacy in the men's locker room, but it has received complaints from male customers about inadequate locker space on the men's side.

9. The differences in the nature of the facilities provided in the men's and women's locker rooms at Vic Tanny are not motivated by any desire to discourage either males or females from utilizing Vic Tanny's facilities, nor do they have that effect.

Based on the FINDINGS OF FACT made above, the Commission makes the following:

1. Vic Tanny's health clubs are public accommodations within the meaning of sec. 101.22(9), Stats.

2. Vic Tanny does not violate sec. 101.22(9), Stats., by maintaining aluminum partitions between shower heads in the women's but not the men's shower rooms, by maintaining separate changing enclosures in the women's but not the men's dressing rooms, or by providing more locker space in the men's than in the women's dressing rooms.

Based on the FINDINGS OF FACT and CONCLUSIONS OF LAW made above, the Commission now makes the following:

That the complaint in this matter be dismissed.

Dated and mailed August 7, 1992

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

Standing -- Respondent argues that complainant lacks "standing" to bring this complaint. Thus, Respondent cites and discusses court decisions on "standing," and also asserts that "in order to bring a complaint under the Wisconsin Public Accommodations Law, the Complainant must have a substantial interest in the outcome of the complaint, under section 227.01(3), Stats."

However, this statutory section is merely the definition of the term "contested case" which appears in the Administrative Procedure Act. It cannot fairly be read to impose some kind of limit on a right to bring a complaint when that right is affirmatively created by other statutory language. Neither in this section nor anywhere else in the Administrative Procedure Act is there any "standing"-type limitation on who may bring complaints before administrative agencies. Respondent's reasoning, however, seems to be that since a complainant has a right to request judicial review, "it can be safely inferred that the same requirement for standing is applicable" for proceeding before the agency as for requesting judicial review of the agency's decision.

This inference is in fact not a safe one. As the Commission recently held in Milwaukee Metropolitan Fair Housing Council v Goetsch (LIRC, December 6, 1991), the rules governing the right to seek judicial review are not necessarily the same as the rules governing commencement of a proceeding before an administrative agency. The Commission held in Goetsch that under secs. 101.22(3) and (4), Stats., which are the procedural provisions governing both housing discrimination and public accommodation complaints, and the ERD rules which have been promulgated thereunder, any "person" may file a complaint without regard to notions of "standing."

In any event, this complainant's connection to Vic Tanny is real enough. He was a member there within 300 days of the filing of his complaint. As such, he was (by virtue of his membership) within the group of persons potentially affected by Vic Tanny's practices with regard to its facilities.

Therefore the Commission rejects Respondent's argument that Complainant has no standing. The issue of "standing" is simply not one of any significance in the matter of commencing complaints of public accommodations discrimination.

Statute of Limitations -- Respondent also argues that the complaint was untimely under the 300-day statute of limitations that governs public accommodation discrimination complaints, because the statute of limitations began when Complainant first joined Vic Tanny in January 1987 and had therefore expired when he finally filed his complaint in November 1990. This argument is based on the fact that Complainant learned that there were "gang showers" and no private dressing areas on the men's side when he joined, and on the claim that he could have learned at this time of the different facilities on the women's side. Apart from the legitimate question as to whether Complainant could reasonably have been expected to have inquired into the facilities in the women's side at the time he joined, this argument about the statute of limitations is irrelevant because of the nature of the alleged violation. The maintenance of different facilities is a continuing act. Had this case involved something like a refusal to allow a person to join or to be served, then it would be appropriate to apply a conventional statute of limitations analysis which assumes a single act of discrimination occurring at a particular time following which the statute of limitations begins to "run." However, because Respondent has maintained the different facilities at all time material, the complaint was timely.

Merits -- Complainant asserts that Vic Tanny violates the Public Accommodations Law by maintaining separate shower enclosures and separate dressing enclosures in the women's locker rooms of its athletic clubs, while not providing such separate enclosures in its men's dressing rooms.

Provisions of the Public Accommodations Law which are relevant to this claim are that it prohibits denial of (or charging a higher price for) the full and equal enjoyment of any public place of accommodation or amusement because of sex, and that it prohibits giving preferential treatment to some classes of persons in providing services or facilities in any public place of accommodation or amusement because of sex.. Section 101.22(9)(a)1., 2., Stats.  However, it also contains two provisions specifically concerning, among other things, "showers . . . and dressing rooms for persons of different sexes," which are of particular importance in this case. They provide:

(b) Nothing in this subsection prohibits separate dormitories at higher educational institutions or separate public toilets, showers, saunas and dressing rooms for persons of different sexes.

(c) Nothing in this subsection prohibits separate treatment of persons based on sex with regard to public toilets, showers, saunas and dressing rooms for persons of different sexes.

Subsections (b) and (c) were added in the same legislative session in which the law was amended to prohibit sex discrimination. L. 1974 Ch. 94, L. 1975 Ch. 256. They must therefore be considered as integral parts of the Legislature's conception of what constitutes sex discrimination in public accommodations in the first place.

Subsection (b) clearly and unambiguously provides that it is not sex discrimination in public accommodations to maintain "separate" public showers and dressing rooms for persons of different sexes. The question then becomes, does the law require that, although they may be separate, such facilities must nevertheless be identical? The Commission believes that the answer to that question must be derived from subsection (c), which provides that it is not sex discrimination in public accommodations to provide "separate treatment of persons based on sex with regard to" those separate facilities which are allowed by subsection (b).

The Administrative Law Judge construed subsection (c) as allowing separate treatment of persons based on sex only as long as that separate treatment results in each sex receiving full and equal enjoyment of the public place of accommodation at the same price. He also indicated that he found a violation of the law in this case because the facilities provided to males and females were different "and . . . the difference in question was actionable." Thus, the ALJ's reasoning touched on two issues: whether there is a difference between the separate facilities, and whether the difference (if any) is legally significant.

May there be a "difference?" -- The commission understands the ALJ to have concluded that, by virtue of subsection (c), it is not necessarily required in order to achieve compliance with the Public Accommodations Law, that the facilities provided in separate shower and dressing rooms for men and women be identical. The Commission agrees. This is implicit in the language of subsection (c), which allows "separate treatment of persons . . . with regard to" the separate facilities which subsection (b) permits. Subsection (c) must be construed to have a meaning that goes beyond merely allowing "separate" facilities. It is a cardinal rule of statutory construction, that a statute should be so construed that no clause shall be rendered surplusage. Cook v. Industrial Commission, 31 Wis. 2d 232, 239-40, 142 N.W.2d 827 (1966). Since the clear and express meaning of subsection (b) is that it is not unlawful to maintain separate shower and dressing rooms for persons of different sexes, the principle articulated in Cook requires the conclusion that subsection (c) means something more than this.

Subsection (c) also cannot be construed to mean merely that persons may be required to use only the separate shower and dressing rooms established for their sex pursuant to subsection (b). It is implicit in subsection (b)'s authorization of separate shower and dressing rooms for persons of opposite sexes, that persons of different sexes may be required to use the shower and dressing room designated for their sex.

The most reasonable interpretation of the language of subsection (c), which gives it a meaning distinct from that of subsection (b), is that the separate facilities permitted by subsection (b) do not have to be identical.

This conclusion is bolstered, if it is not in fact required, by consideration of the fact that the Legislature has tolerated and in fact itself adopted legal requirements that facilities within the scope of subsections (b) and (c) actually be different for men and women.

By administrative rule, most public restrooms are actually required to be "different" for men and women, in that the rules specify that men's restrooms have urinals as well as water closets, and they specify a formula relating the number of water closets in women's restrooms to water closets plus urinals in men's restrooms. Wisconsin Administrative Code ILHR 55.32. The new "potty parity" law, 1991 Act 110, specifies that public restrooms provide adequate facilities that females have the same "speed of access" to toilets in their restrooms as men have to toilets and urinals in their restrooms, sec. 101.128(2), Stats. Although it is not expressly stated in the law, it was evidently anticipated by the Legislature that the rules which will be adopted by DILHR under this law will require a greater number of toilets in women's restrooms than the combined number of toilets and urinals in men's restrooms intended to serve the same number of persons. This accentuates the extent to which "differences" in restroom facilities have been anticipated by the Legislature.

Subsections (b) and (c) of the Public Accommodations Law do not distinguish between their applicability to toilets and their applicability to showers and dressing rooms. If they permit differences between men's and women's toilets, they must permit differences between men's and women's showers and dressing rooms. The fact that the Legislature has accepted administrative rules requiring differences between public restrooms for men and women and has itself directly required such differences, shows that the Legislature did not consider subsections (b) and (c) of the Public Accommodations Law to require that the types of facilities covered thereby -- including showers and dressing rooms -- necessarily had to be identical.

Public showers and dressing areas for men and women may therefore be separate, and also need not be identical in terms of the facilities offered therein.

Is any difference legally significant? -- With respect to the second issue, the ALJ evidently concluded that a difference in facilities provided in separate men's and women's showers and dressing rooms is legally significant if it results in either sex not receiving full and equal enjoyment of the public place of accommodation or amusement. The Commission agrees. This standard merely reflects the prohibition in sec. 101.22(9)(a)1., Stats., against denying another the full and equal enjoyment of any public place of accommodation or amusement. The Commission further believes that a difference in facilities in separate men's and women's showers and dressing rooms would be impermissible under the Public Accommodations Law if it constituted the giving of "preferential" treatment to one or the other group, based on the prohibition against such preferential treatment in sec. 101.22(9)(a)2., Stats. The Commission disagrees with the ALJ, however, on the question of whether the difference in facilities in this case had either effect.

Because subsections (b) and (c) effectively provide that different facilities for males and females are not necessarily violative of the prohibition on denial of "full and equal enjoyment" and giving "preferential treatment," some other standard than "difference" must be looked to. The Commission believes that the law is most reasonably construed as providing that differential treatment of males and females with respect to the facilities in separate public toilets, showers, saunas and dressing rooms is prohibited if the facilities for one group are unambiguously better than those offered to the other group, or if it is demonstrated that the differences were either intended to or did have the effect of discouraging one group's use of the public accommodation or amusement in question.

In this case, there is no basis on which to conclude that having aluminum partitions between shower heads is "better" than not having them, or that having separate changing enclosures is "better" than not having them and instead having additional locker space. These are value judgments on which reasonable persons may differ. The record shows, if anything, that females placed a greater value on the separate showering and changing enclosures and that males placed a greater value on locker space. There is also no basis on which to conclude that the differences had either the purpose or the effect of discouraging anyone from using Vic Tanny's facilities. As far as the question of purpose is concerned, the evidence suggests that Respondent's purpose was to encourage patronage by members of both sexes by providing facilities of a kind evidently preferred by them. As far as the question of effect is concerned, the only evidence on anyone's choice as to using the facilities concerns Complainant's decision to stop patronizing Respondent, and it is undisputed that his decision to do so was not affected by the differences in the facilities. It is therefore concluded that neither a purpose nor the effect of discouraging males has been demonstrated.

NOTE: The Commission did not consult with the Administrative Law Judge concerning matters of witness credibility because its reversal is premised on a different conclusion on the legal issue presented.

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