Discrimination and Gyms: How Does it Work?
For those that own or run a 24 hour gym, specialty gym classes, F45 Training, boot camps or CrossFit boxes there is a great deal of competition which means a focus on obtaining more members and more importantly retaining members.
One unique way that some gyms or boxes are doing this is by way of a specialty class offering specific training to women only, mums classes or kids only classes. These form part of “positive discrimination” practices or “affirmative action” from a legal standpoint. With that being said there are special provisions under various discrimination legislation that must be enacted for an exemption to apply and all gym owners whether they be silent or shadow directors or managers should be aware of these issues as we have dealt with a several cases recently wherein members have made complaints to the Australian Human Rights Commission.
Complaints
Firstly, owners should have a complaint mechanism in place to deal with disputes that may arise from their clients. From a practical point of view this will give owners and management an opportunity to deal with problematic members and grievances they may have in a timely manner. A complaints mechanism can merely be a staff member appointed to deal with all complaints and/or a more formal written process which is dealt with directly by management.
Positive Discrimination
In the 2011 Federal Court of Australia matter of Walker v Cormack & Anor [2011] FCA 861 a male member of a gym filed an application against a gym called U2 Fitness Centre.
Walker attended the gym for 18 months two times a week to regular mixed gender classes on Monday evening and Tuesday morning. The gym decided that these two classes would be changed to “provide an environment conducive for women to partake in the pleasure and benefits of gymnasium-based exercise programs which they would not normally have considered, and would not normally have partaken in, but for the female-only aspect of the program”.
Walker took exception to this as he found the class time convenient and made it very clear to the Respondent (and the instructor and other females attending the class) his displeasure at the change. Walker made a complaint for unlawful discrimination based on sex under the Sex Discrimination Act (SDA) to the Human Rights Commission before proceeding to the Federal Magistrates Court of Australia (as it was previously known) and eventually appealed to the Federal Court of Australia.
On the face of it, Walker was being discriminated based on his gender however there are exceptions under the SDA and in this light, the Respondent argued that a special measure was being implemented under s 7D of the SDA to achieve substantive equality for women. That is, the clientele was mainly male dominated and the classes would take steps to bridge the substantive inequality in place.
Walker failed in his attempt to argue discrimination based on sex due to a number of grounds:
- The establishment of the “women on weights” class was to provide substantive equality and encourage females to attend the gym which was mainly dominated by male clientele;
- The natural inequality in the gym was attempted to be rectified by implementing the new women’s only class;
- The special measure put in place by the Respondent was arguable under the SDA;
- The new women only classes were not discriminatory.
What this teaches us?
For owners this is good reminder of how such classes that are put in place to bridge substantive inequality can be argued to be a special measure and therefore non-discriminatory under the SDA. Further, other classes can also be put in place and some examples may be people who are pregnant or breastfeeding and those with family or parental responsibilities.
If you are concerned about putting such classes in place or have received a complaint by a member due to such a class we recommend contacting a lawyer that specialises in this area of law to give you the advice required to mitigate risk and liability or to defend a claim.
For further information or for a consultation to discuss any potential legal issue please contact Jonathan Mamaril, Principal on 07 3876 5111 or email [email protected] or go to our website www.lawyersforemployers.com.au
Written by
Jonathan Mamaril, Principal & Director,
NB Lawyers – the Lawyers for Employers
07 3876 5111
[email protected]