both parties' arguments, the court has decided to grant reconsideration.
Although the court agrees with the general rule against reconsideration of new evidence, the unique facts of this case dictate that the court depart from it. In the instant case, defendants seek to introduce evidence which was discovered after the court ruled on, and denied, the parties' cross motions for summary judgment.
After the denial of the cross motions for partial summary judgment, both sides were free to conduct additional discovery in order to strengthen their cases. Thus, this is not a case in which the defendants' presentation of new evidence represents an attempt to undermine the court's ruling, or to gain a tactical advantage by delay. Rather, defendants were gathering the evidence at issue before the court ruled against them, and after the court had commented on the need for more evidence.
Moreover, confusion regarding the presentation of the new evidence existed on many levels. Apparently, there was a misunderstanding concerning whether the defendants planned to submit supplemental evidence while the EEOC's motion for reconsideration was pending. Although, the court believed that the defendants planned to present any additional evidence they had on the motion for summary judgment at that time, defendants were under a contrary impression. In sum, the court finds that reconsideration is appropriate on the facts presented here.
Accordingly, the motion to reconsider is granted. Thus, the court will reconsider, under all of the evidence presented, whether the EEOC is entitled to summary judgment because defendants have failed to raised a genuine issue of material fact on each element of the BFOQ defense.
Summary judgment is appropriate when the record shows that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Wolf v. City of Fitchburg, 870 F.2d 1327, 1329 (7th Cir. 1989). The moving party has the initial burden of establishing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). The nonmoving party must then set forth specific facts, through affidavits or other materials, that demonstrate disputed material facts that must be resolved at trial. Id. at 324. The court must view all evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Anderson v. Liberty Lobby, 477 U.S. 242, 255, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986) (emphasis added). However, if "the evidence presented by the nonmovant . . . [is] merely colorable or . . . not significantly probative, summary judgment [is] proper." Wolf, 870 F.2d at 1330. Moreover, there can be no "genuine issue as to a material fact" where a party fails to make a showing sufficient to establish the existence of an element on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-323.
Since the EEOC does not bear the burden of proof on the BFOQ defense, its burden "may be discharged by 'showing' -- that is pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325. Defendants must then make a showing sufficient to establish the existence of each element of the BFOQ defense. Id. at 323.
Title VII specifically prohibits employers from discriminating against potential employees on the basis of sex. Hence, sex based hiring policies may be justified only when sex is a BFOQ for the position at issue. Title VII defines a BFOQ as a "bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise." 42 U.S.C. § 2000e-2(e)(1). "It is universally recognized that this exception to Title VII was 'meant to be an extremely narrow exception to the general prohibition of discrimination. . . .'" Torres v. Wisconsin Dep't of Health & Social Serv., 859 F.2d 1523 (7th Cir. 1988) (quoting Dothard v. Rawlinson, 433 U.S. 321, 334, 53 L. Ed. 2d 786, 97 S. Ct. 2720 (1977)).
An employer asserting a privacy based BFOQ defense must satisfy a three part test: the employer must establish that 1) there is a factual basis for believing that hiring any members of one sex would undermine the essence of its business, 2) the asserted privacy interest is entitled to protection under the law, and 3) no reasonable alternatives exist to protect the privacy interests other than the gender based hiring policy. Sedita, 755 F. Supp. at 810; Norwood v. Dale Maintenance System, Inc., 590 F. Supp. 1410, 1415-16 (N.D. Ill. 1984); Fesel v. Masonic Home of Del., Inc., 447 F. Supp. 1346 (D. Del. 1978), aff'd, 591 F.2d 1334 (3d Cir. 1979).
In the instant case, defendants acknowledge that they have employed a hiring policy which discriminates against men on the basis of sex, and that such a policy can only be defended as a BFOQ. Defendants argue that their sex based hiring policy is a BFOQ because it is based on protecting the legitimate privacy interests of their exclusively female clientele. Moreover, defendants contend that protecting the privacy interests of WWW customers is crucial to the club's continued existence, since members will not patronize Women's Workout World if they are forced to be waited on by men. Defendants insist that there are no reasonable alternatives because it would be impossible for WWW to reassign job duties in order to avoid intruding on member's privacy interests, and that the costs of restructuring their facilities to accommodate men would be prohibitively high.
Privacy Based BFOQ
Having asserted a privacy based BFOQ, defendants' must show that there is a legitimate privacy interest associated with the jobs at issue. Defendant's argue that these jobs require a substantial amount of intimate touching, and exposure to nudity. Although it is not clear whether the EEOC concedes that exposure to nudity implicates a protectible privacy interest, various courts have found that it does. See e.g., Norwood, 590 F. Supp. 1410, 1416 (N.D.Ill. 1984) (privacy based BFOQ barred employment of a female washroom attendant in office building).
Also, despite the fact that customer preferences do not usually establish a BFOQ, in some situations "customer preference may . . . give rise to a BFOQ for one sex where the preference is based upon a desire for sexual privacy." EEOC v. Mercy Health Center, 29 F.E.P.C. 159 (W.D. Okl. 1982). Thus, the privacy right has been recognized in a variety of situations, including disrobing, sleeping, or performing bodily functions in the presence of the opposite sex." Id. Consequently, defendants have articulated a legitimate privacy interest with regard to nudity.
However, the extent to which the privacy interest is implicated given the alleged "intimate" touching involved in this case is unclear. Defendants' evidence indicates that a significant part of defendants' business involves touching clients on their breasts, inner thighs, buttocks, and crotch area when taking measurements and instructing members on the use of equipment and proper exercise form. (Sedita Dep. Vol I, p. 178; Memorandum in Support of Motion to Reconsider ("Def. Memo"), Ex. C). The EEOC questions the extent of the touching involved and argues that such touching fails to implicate a protectible privacy interest. (Plaintiff's Memorandum in Opposition to Defendants' motion to Reconsider ("Pl. Memo"), pp 15-18).
While some of the cases which have considered privacy questions are instructive, see e.g., Hodgson v. Robert Hall Clothes, Inc., 326 F. Supp. 1264, 1269 (D. Del. 1971) (salesperson in clothing department allowed for sex based BFOQ); Fesel v. Masonic Home of Delaware, Inc., 447 F. Supp. 1346, 1352-54 (D. Del. 1978) (nursing assistant in home for the elderly), no court has addressed the issue of whether a protectible privacy interest exists with respect to the sort of touching at issue in this case. Also, as the EEOC correctly notes, the cases upon which defendants rely are clearly distinguishable because they involve exposure to nudity, touching of genitals, and observance of private bodily functions. (Pl. Memo, pp. 16-17). However, the court declines the invitation to find that members of a single-sex health club have no legitimate privacy interest in preventing the opposite sex from touching their breasts, buttocks, etc. -- even for the limited purposes described here and for the purposes of this motion, the court will assume that defendants have implicated protectible privacy interests.
In reaching this decision, the court is particularly mindful of the court's comment in Backus v. Baptist Medical Center, 510 F. Supp. 1191, 1195 (E.D. Ark. 1981):
It is necessary to stress that the purpose of the sex provisions of the Civil Rights Act is to eliminate sex discrimination in employment, not to make over the accepted mores and personal sensitivities of the American people in the more uninhibited image favored by any particular commission or court or commentator.
Since the court assumes that legitimate privacy interests have been implicated, it must determine whether the intrusion on privacy involves the "essence" of the jobs and the Club's business. Defendants have introduced evidence that the nudity and touching concern the essence of the jobs and the business operation. (Defendants' Affidavits, Def. Memo, Ex. C). Although the EEOC makes a valid argument that the essence of WWW is providing exercise classes, defendant's evidence allows a reasonable inference that the "essence" of WWW can be more broadly construed as providing personal and individual service to an exclusively female clientele. Thus, defendants have raised a genuine issue of material fact because the essence of the jobs and business might properly include: selling memberships, personally instructing clients on exercise form and use of equipment, leading orientation sessions, and taking clients' measurements. The court cannot say, as a matter of law, that the various job duties are not the essence of WWW's business. In short, construing the evidence in the light most favorable to the nonmovant, defendant's have shown that the essence of the jobs may implicate legitimate privacy interests.
Factual Basis for Hiring Policy
This court must determine whether there is a factual basis for defendants' hiring policy. As the court in Norwood held:
A defendant in privacy rights case may satisfy its burden of proving a factual basis for a sex-based hiring policy by showing that the clients or guests of a particular business would not consent to service of the opposite sex, and that the clients or guests would stop patronizing the business if members of the opposite sex were allowed to perform the service.