The opinion of the court was delivered by: WILLIAMS
ANN CLAIRE WILLIAMS, UNITED STATES DISTRICT JUDGE
This matter is before the court on the Equal Employment Opportunity Commission's ("EEOC") motion to reconsider the court's October 22, 1990, ruling on the cross-motions for partial summary judgment. The motion for reconsideration is granted. For the reasons explained below, on reconsideration the court grants the EEOC's motion for partial summary judgment.
On November 28, 1989, defendants Audrey Sedita et al. filed a motion for Partial Summary Judgment arguing that their refusal to hire males as Managers, Assistant Managers, and Instructors does not violate Title VII because gender is a bona fide occupational qualification ("BFOQ") for those positions at Women's Workout World. On January 8, 1990, plaintiff EEOC, filed a Cross-Motion for Partial Summary Judgment contending that the defendants had failed to prove that sex is a BFOQ for the positions at issue.
On October 22, 1990, the Court, after finding that there was a genuine issue of material fact concerning whether sex was a BFOQ for the positions at Women's Workout World, issued a Memorandum Opinion and Order denying both motions for summary judgment. In the order, the court commented on the paucity of evidence provided by the defendants and requested additional briefing. EEOC now asks the court to reconsider its ruling arguing that because the defendant has failed to prove each and every element of the BFOQ defense, the motion for Partial Summary Judgment should be granted in plaintiff's favor. For the reasons explained below, the plaintiff's cross-motion for Partial Summary Judgment is granted.
Partial Summary Judgment and the BFOQ Defense
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate when the record reveals that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party has the initial burden of establishing that there is no genuine issue of material fact. Celotex v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). The non-moving party must then set forth specific facts through affidavits or other materials that demonstrate disputed material facts that must be resolved at trial. Celotex, 106 S. Ct. at 2552-53. Hence, summary judgment is appropriate when the non-moving party is unable to make a showing sufficient to prove an essential element of a case on which the non-moving party bears the burden of proof. Common v. Williams, 859 F.2d 467, 469 (7th Cir. 1988).
42 U.S.C. § 2000e-2(e), which is titled "Unlawful Employment Practices", explains when sex-based hiring policies may be justified:
Notwithstanding any other provision of this subchapter, (1) it shall be an unlawful employment practice for an employer to hire and employ employees . . . on the basis of . . . sex . . . in those instances where . . . sex is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise . . . .
The BFOQ exception is "meant to be an extremely narrow exception to the general prohibition of discrimination on the basis of sex." Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977). Hence, as the court noted in its October 1990, order a defendant asserting a BFOQ defense has a heavy burden in terms of justifying his employment practice.
Under the law, an employer asserting a privacy based BFOQ defense must satisfy a three part test. First, the employer must assert a factual basis for believing that hiring any members of one sex would . . . undermine the business operation." Dothard v. Rawlinson, 433 U.S. 321, 97 S. Ct. 2720, 53 L. Ed. 2d 786 (1977). See also, Norwood v. Dale Maintenance System, Inc., 590 F. Supp. 1410 (N.D. Ill. 1984). The employer must also prove that the customer's privacy interest is entitled to protection under the law, and that no reasonable alternatives exist to protect those interests other than the gender based hiring policy. Norwood, 590 F. Supp. at 1415-1416. See also, Fesel v. Masonic Home of Delaware, Inc., 447 F. Supp. 1346, 1351 (D.Del. 1978), aff'd, 591 F. Supp. 1334 (3d Cir. 1979).
The EEOC first argues that the defendants cannot prove a factual basis for the club's hiring policies. Plaintiff also argues that the defendants fail to present any conclusive evidence that their clients would stop patronizing the club if members of the opposite sex were hired to work at Women's Workout World as managers, assistant managers, and instructors. The defendants contend that it is clear that a factual basis for their hiring policy exists because their clients have consciously chosen to join an all female health club. The defendants also present Audrey Sedita's deposition testimony as evidence of a factual basis. Ms. Sedita explains that members have, in the past, been disturbed by the presence of males in the club. She also comments on the "type" of woman who joins Women's Workout World.
Having set out the requirements for the BFOQ defense, the court must consider the defense in the context of this case. See, Torres v. Wisconsin Dep't of Health and Social Services, 859 F.2d 1523, 1528 (7th Cir. 1988) (In reviewing a BFOQ case, courts are required to "come to an understanding of the employer's business -- its mission and the methodologies necessary to fulfill that mission.") In the October, 1990 opinion, the court found that given the uniqueness of the goals of Women's Workout World as a fitness center, and the particular needs of its clientele, there was a genuine question of material fact regarding whether there was a factual basis for defendant's ...