RONALD WALTER SCHMID, Complainant

SHAPE UP SHOPPE, Respondent A
J. NEWMAN, PRESIDENT, Respondent B

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 May 19, 1992. Respondent filed a timely petition for review by the Commission and submitted written arguments in support of its petition.

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

The decision of the Administrative Law Judge (copy attached) is modified as follows:

Paragraphs 3 and 4 are deleted and the following paragraphs substituted therefor:

"3. That the Respondents shall forfeit the amount of five hundred dollars ($500.00) to the State of Wisconsin. This forfeiture shall be payable to the State Treasurer and be sent to Kendra DePrey, along with the compliance report required below.

4. Within thirty days after the date in which the order becomes final, the Respondents shall file with the Commission a compliance report detailing the steps taken to comply with this Order. The compliance report shall be directed to the attention of Kendra DePrey, Labor and Industry Review Commission, P. O. Box 8126, Madison, Wisconsin 53708."

As modified, the decision of the Administrative Law Judge shall stand as the FINAL ORDER herein.

Dated and mailed January 11, 1993

/s/ Pamela I. Anderson, Chairman

/s/ Richard T. Kreul, Commissioner

/s/ James R. Meier, Commissioner

Procedural issues -- Respondent argues that there is no evidence adequate to support a finding that it is a public place of accommodation or amusement within the meaning of the Statutes, and that the evidence that it operates on a membership basis establishes that it is not a public place of accommodation or amusement. The Commission disagrees. It is quite evident from the record that Respondent is a typical health club business which provides services to the general public subject to no requirement other than payment of fees for the services. The type of "membership" involved here is not the type of "membership" anticipated by the Legislature in its description of a "bona fide private, nonprofit organization or institution," providing services to "members of the organization or institution," "during an event." Section 101.22 (1)(bp)2., Stats. The "membership" which Respondent invokes is no more than a method of accounting for fee payments.

Respondent argues that the complaint in this matter is barred by the statute of limitations. The alleged discrimination, however, is continuing, and the complaint is therefore timely. Additionally, the second complaint (ERD #9250017) was filed within 300 days after the Complainant was told that his membership at the Wauwatosa location would not be renewed because men would no longer be permitted at that location.

Respondent argues that there is no statutory prohibition against retaliation for the exercise of rights protected under the Public Accommodations Law. This is not correct. Section 101.22(4m), Stats. provides:

"INTERFERENCE, COERCION OR INTIMIDATION. No person may coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of any right granted or protected by this section, or with any person who has aided or encouraged another person in the exercise or enjoyment of any right granted or protected by this section." (emphasis added)

This subsection of sec. 101.22, Stats. is an anti-retaliation provision applying to the entire section. Dude v. Thompson (LIRC, November 16, 1990). The right to be free of discrimination in public accommodations, and the right to file a charge of public accommodations discrimination with the Equal Rights Division, are rights granted and protected by sec. 101.22, Stats. When a public place of accommodation retaliates against a person who has filed such a charge by further limiting or denying access to that person, this tends to coerce, intimidate, threaten and interfere with that person's exercise and enjoyment of their statutory right to file a charge of discrimination.

Merits -- In Malecki v. Vic Tanny (LIRC, August 7, 1992), the Commission considered the question of whether health clubs could provide different physical facilities in their separate men's and women's dressing rooms and shower rooms. That question was controlled by the provisions of sec. 101.22(9)(b) and (c), Stats., in which the Legislature expressly provided that it was permissible to establish separate "public toilets, showers, saunas and dressing rooms" for men and women, and to provide "separate treatment" of persons based on sex "in regard to" such separate facilities. This case presents a different question: whether health clubs may offer aerobics classes in which only women are allowed to participate. This is a question of first impression in this state, on which the Commission has only the bare statutory language to guide it.

The Public Accommodations Law makes it unlawful to deny to another the full and equal enjoyment of any public place of accommodation or amusement because of sex, or to give preferential treatment to some classes of persons in providing services in any public place of accommodation or amusement because of sex. Where, as here, men are denied the opportunity to participate in certain aerobics classes because of their sex, it must be concluded that there has been a violation of the letter of the law.

The record establishes that the Respondent refused to let men into certain aerobics classes (eventually excluding them from all of the classes offered at one of its two locations) because women in the classes did not want men present. Without intending to express any opinion on the matter, the Commission would acknowledge that some persons may view the question of the presence or absence of men in aerobics classes as involving issues of privacy.

The Legislature has recognized a right of privacy. See, sec. 895.50, Stats. An "invasion of privacy" may include intrusion upon the privacy of another of a nature highly offensive to a reasonable person, in a place that a reasonable person would consider private. Section 895.50(2)(a), Stats. The Wisconsin Supreme Court has indicated that there are three separate types of invasion of privacy, one of which is intrusion upon a person's seclusion or solitude, or into his or her private affairs. Zinda v. Louisiana-Pacific Corp., 149 Wis. 2d 913, 928-29, 440 N.W.2d 548 (1989). However, the commission cannot take upon itself the task of deciding that considerations of privacy should dictate a result here which is contrary to the letter of the law. The Commission's responsibility is to apply the law as created by the Legislature to the facts of the cases that come before it. The responsibility for creating that law, however, is the Legislature's. It is peculiarly in the domain of the Legislature to weigh and decide difficult policy questions such as what the scope of the protected right of privacy should be and what weight one person's right to privacy should be given as against another person's right to be free of discrimination.

In deciding that there would be a general rule prohibiting discrimination on the basis of sex in public accommodations, but that there would be a specific exception allowing such discrimination with respect to toilets, showers, saunas and dressing rooms, the Legislature engaged in just such weighing and decision-making. It has been and is still within the Legislature's power to extend the scope of that exception to other situations in which some members of one sex might feel that their privacy was impaired by the presence of members of the opposite sex, but to date the Legislature has not done so.

It is not merely the absence of an exception for aerobics classes, but also the very fact that the Legislature has created an express exception with limited applicability to public toilets, showers, saunas and dressing rooms, which precludes the Commission from recognizing some implicit exception in other kinds of situations including the one at issue here. The rule of statutory construction, inclusio unius est exclusio alterius (to include one thing is to exclude others) has been described by the Wisconsin Supreme Court as "familiar and well established." Costigan v. Hall, 249 Wis. 94, 98, 23 N.W.2d 495 (1946). The specific inclusion of public toilets, showers, saunas and dressing rooms in a section of the law making an exception from the general illegality of sex discrimination in public accommodations, excludes aerobics classes from being subject to any such exception.

Difficult issues are presented when members of protected groups which initially sought to use anti-discrimination laws to overcome their historical exclusion from certain areas, come into conflict with those same laws as a result of their own attempts to establish areas in which they may exclude those who had previously excluded them. Whether the issue is schools restricted to male African-American children, or aerobics classes restricted to females, there are likely to be strong feelings on the part of those involved that the exclusion at issue is qualitatively different from the kind of exclusion which anti-discrimination laws were originally meant to remedy, and that the discrimination involved should not be considered blameworthy because it is not invidious. However, there is anything but unanimity on this point, even among members of the historically excluded groups. Thus, it is illustrative that in Livingwell v. Pennsylvania Human Relations Commission, 606 A.2d 1287, 1992 Pa. Commw. LEXIS 287 (April 7, 1992), in which the seven justices of Pennsylvania's appellate Commonwealth Court addressed the question of whether female-only aerobics classes violated the anti-discrimination provision of Pennsylvania's Human Relations Act, it was the five male justices who comprised the majority which ruled that the exclusion of men was permissible. (1)   The two female justices both filed vigorous dissents, which excoriated the majority for perpetuating the kind of "antiquated notions" about the societal roles of men and women which led to the kinds of "protective legislation" that were among the first targets of sex discrimination laws enacted in and since the 1960s.

Policy questions so laden with controversy should, at least initially, be addressed in the political rather than the judicial arena. It is up to the Legislature to decide whether and under what circumstances members of groups which have historically been subject to exclusion may themselves engage in such exclusion. As the Public Accommodations Law now stands (and apart from very specific and narrow exceptions which, as discussed above, are not applicable here), no one may be excluded from or otherwise discriminated against with respect to public accommodations because of their membership in a particular classification, whether or not the exclusion is being practiced by members of a historically oppressed group, and whether or not the exclusion is considered somehow benign by those engaging in it. This is the plain meaning of the statute. The wisdom of this result, and the wisdom of any alternative set of rules, is for the Legislature to determine.

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(1)( Back ) The reasoning of the majority was that, due to privacy interests, sex was a "bona fide occupational qualification" for participation in an aerobics class. This is a dubious proposition, since the BFOQ exception is peculiar to employment discrimination law, and what is at issue in these cases is access to public accommodations. The holding is not persuasive because, unlike the Pennsylvania law (at least as it is quoted in the majority opinion), the phrase "bona fide occupational qualification" does not appear anywhere in the statutory sections governing public accommodations discrimination in Wisconsin. 

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