Sexual Harassment and the Fitness Industry
Are you creating a safe space for clients, class participants and staff to thrive?
One day, while stretching my client Jim, I was taken aback when I realized he wasn’t wearing underwear. His shorts were swim trunks with interior netting. I quickly looked away and continued to stretch him. This happened with Jim on several other occasions, but I never mentioned it because I wasn’t sure how to broach the matter. I also didn’t feel that he was doing this intentionally, nor did I believe he meant harm.
While some may consider Jim’s behavior a case of sexual harassment, at the time I didn’t see it as anything more than a lapse in judgment by my client—and knowing this man, I still believe that. This was also well before the #MeToo movement came into the spotlight. While I felt that this incident fell into a gray area, other situations are much more black-and-white.
“We once had a new member who was also new to town and had moved here for a prominent position within our arts community,” says Trina Gray, owner of Bay Athletic Club in Alpena, Michigan. “We were excited to work with him and knew that it could lead to a greater partnership between my club and his theater group. However, at his new-client consultation, he was extremely inappropriate with our female trainer. He talked openly about his private anatomy and suggested that he’d like to get to know her more intimately. She was frazzled and tried to redirect [the conversation] several times.”
Inappropriate sexual advances sometimes come in the form of a text message. “I was contacted by a male individual [and asked] to provide training for his aunt, who resided in his home,” recounts Justin Seedman, owner of JustinFit, an in-home personal training company in Broward County, Florida. “After 1 week of sessions with the aunt, I received a highly inappropriate sexual text message from the nephew.”
What would you do if you were in one of these situations? Do you still need to put a protocol in place for dealing with sexual harassment issues and allegations? Fitness professionals who have experience with this topic offer guidance, tips and support.
Report and Document
If the sexual harassment occurs in a face-to-face interaction, Seedman advises, get out of the situation quickly. “There is no need to mention anything about the harassment,” he says. “Simply say, ‘We have to stop for today.’ It’s preferable not to engage in back-and-forth conversation.”
The next steps are congruent with each other: Report and document. Gray’s employee was trained in exactly what to do. “She ended the session early and reported it to me right away,” says Gray. “We then wrote up an incident report.”
At this point, whether you’re an employee or a business owner, you are not obligated to continue any sort of relationship with the alleged harasser. “I immediately contacted him and terminated his membership,” says Gray. “That did not go over well with him; he claimed he was just joking around and we needed to get to know him. He was angry and accused me of having a ‘small-town mindset.’ I held firm. We don’t have any place for that in our business. We are respectful of each other at all times. My team felt taken care of and looked after because I took swift, immediate action.”
Since Seedman essentially had the harassment in writing, it was already documented. “I called my attorney, sent the nephew a termination text and refunded the money. Needless to say, the attorney drafted a termination clause so that, in the future, a refund would not be required.”
Yes, you read that right. Seedman refunded the money because, at the time, he did not have a refund clause that stated anything about cause. “Trainers need to address contract cancellations before sessions begin, and [the contract should] include a [a clear refund] clause,” urges Seedman. “Many trainers put up with sexual harassment to avoid giving refunds, because they need the money or have counted on the money for a particular purpose. The clause protects you and gives the client a heads-up about the refund policy.”
Because it can become very logistically complicated, Seedman does not specifically define cause in his contract, which reads: “Addressing cancellation of contract: In the event JustinFit LLC terminates this agreement without good cause or any other claim by client hereunder, client shall only be entitled to a refund of the pro rata share of any prepaid monthly or quarterly sessions and waives any other claim or damage. If JustinFit LLC terminates this agreement with cause, client shall not be entitled to a refund.”
If there is a question regarding cause, Seedman defers to his attorney. This is where documenting is so important. “You must document the incident in writing with as much detail as soon as possible, while it is fresh in your mind,” says Seedman, who lets his attorney take over from that point. “I call our attorney and ask the trainer not to communicate with the client. The attorney generally contacts the client, cancels the contract and [tells] the client not to contact the trainer or any member of the staff.”
While you do have a little bit of wiggle room regarding how much time you have to file a charge, it’s not much. The U.S. Equal Employment Opportunity Commission states, “In general, you need to file a charge within 180 calendar days from the day the discrimination took place. The 180-calendar-day filing deadline is extended to 300 calendar days if a state or local agency enforces a law that prohibits employment discrimination on the same basis (EEOC 2018a).”
While we’d all like to think we’re safe among our colleagues and supervisors, this isn’t always the case. For example, in Sheppard v. River Valley Fitness Mary Chris Sheppard and Robert Sheppard (plaintiffs) brought a sexual harassment suit against their employer and supervisors, River Valley Fitness One, L.P., et al. (defendants). According to documents filed in the U.S. District Court, District of New Hampshire (CV-00-111-M), Mary Chris Sheppard alleged that, over the course of 5–6 months, “she was subjected to a hostile work environment by her supervisor, and that her employer failed to take adequate measures to stop the harassment.”
In this case, the hostile work environment was characterized by her supervisor’s behavior, which included unwanted kisses on the cheek, sexually fueled comments and jokes, and “staring or leering at women,” Sheppard among them, while rubbing and/or touching his genitals. Sheppard also complained about retaliation after the harassment was reported.
“Ultimately, it’s the fitness business owner’s responsibility to ensure everyone who enters the facility is safe and free of any harassment of any type at any time,” says Josh Leve, founder and CEO of the Association of Fitness Studios.
In fact, according to Robin Bond, Esq., a workplace attorney and founder of the employment law firm Transition Strategies LLC, Philadelphia, “The law requires [emphasis added] employers to have policies in place that explain what sexual harassment is and what to do about it if you experience it at work from co-workers, bosses or clients. It is recommended that employers have training at least once a year for all employees, so that employees know their rights and responsibilities and act accordingly” (Vogel 2007).
Leve adds: “The policy should be written up and provided in an employee handbook that everyone must receive a copy of and sign. Additionally, it must be distributed to all new employees [and] posted [in a known location in] the facility. [The policy must make it very clear that] harassment of any kind is not tolerated. [Copies should be] redistributed on a regular basis and [the policy should be] communicated to employees often.”
Jennifer Urmston Lowe, national accounts manager for Sports & Fitness Insurance Corporation, agrees. “Policies should state what is and is not acceptable behavior between employees, as well as between employees and clients/students,” she says. “This should include what is acceptable verbal and physical contact.”
While it’s less common to have a policy for members and clients, Lowe says the industry may indeed move in that direction. Leve feels the time is now for including such a policy as part of the client/member contract. “The contract should have a provision that makes the client aware, just like the employee or independent contractor, that sexual harassment is not tolerated,” he says, adding that it may also be a good idea to include a summary or example of what’s considered sexual harassment. He recommends that fitness professionals ask clients to review and sign the document.
While it is the owner’s responsibility to keep you safe in your workplace, what if, as in the Sheppard case, you’re being harassed by your supervisor or gym owner?
“In any of these cases, it must be dealt with quickly and promptly by going directly to the facility manager or owner,” advises Leve. “If . . . there is no higher level of authority, then it could escalate to a police matter. However, if there’s a corporate office, the director of human resources can be notified, as well.”
Create A Safe Place
According to a 2008 survey by Stop Street Harassment, 24% of women will pay to work out in a gym to avoid being harassed while exercising outdoors (SSH 2018). Yet, many lawsuits have been brought against gyms and fitness professionals, which raises the question: Is it really that much safer to work out in a gym or studio?
Many people already avoid the gym environment, as it’s uncomfortable for them. They feel as if they’re in a fishbowl of half-dressed people, all of whom know how to move their bodies with grace and ease. To reiterate what Leve said, and perhaps take it a step further, it is everyone’s responsibility to provide a safe, harassment-free zone for co-workers, managers, owners, clients and students. If we work together, we can make our own little corner of the world safe, welcoming and inviting to all kinds of people who are hoping to improve their lives through health and fitness.
According to the U.S. Equal Employment Opportunity Commission, “Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Title VII applies to employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations, as well as to the federal government.”
The EEOC states that sexual harassment may occur in a wide range of circumstances, including but not limited to the following:
- The victim, as well as the harasser, may be a woman or a man. The victim does not have to be of the opposite sex.
- The harasser can be the victim’s supervisor, an agent of the employer, a supervisor in another area, a co-worker or a nonemployee.
- The victim does not have to be the person harassed, but could be anyone affected by the offensive conduct.
- Unlawful sexual harassment may occur without economic injury to or ischarge of the victim.
- The harasser’s conduct must be unwelcome.
The EEOC recommends that the victim directly inform the harasser about unwelcome conduct and ask the harasser to stop. The victim is encouraged to use the available employer grievance system.
Prevention, says the EEOC, is the best way to eliminate workplace sexual harassment: “Employers are encouraged to take steps necessary to prevent sexual harassment from occurring. They should clearly communicate to employees that sexual harassment will not be tolerated. They can do so by providing sexual harassment training and by establishing an effective complaint or grievance process and taking immediate and appropriate action when an employee complains.
“It is also unlawful to retaliate against an individual for opposing employment practices that discriminate based on sex or for filing a discrimination charge, testifying, or participating in any way in an investigation, proceeding, or litigation under Title VII.”
Title VII applies to employers with 15 or more employees; but what about those with fewer employees—or none?
According to FindLaw (2018): “For companies with fewer than 15 employees, state law governs—and most states have enacted laws covering such circumstances. If either quid pro quo or hostile work environment harassment can be proven, employers may be liable for compensatory (monetary loss, pain and suffering) and punitive damages. Liability may depend on who committed the harassment (superior or co-worker) and what action the company took to correct it.
FindLaw (2018) also stipulates the following:
- If the harassment is committed by a superior and there is “tangible employment action (firing, demoting, negative changes in assignments or responsibilities), then the employer is liable.”
- If the harassment is a hostile work environment, then the employer is liable. The employer’s defense to liability is that (1) “it exercised reasonable care to prevent the harassment and took prompt corrective action to stop it once made aware, and (2) the employee unreasonably refused to take advantage of the corrective measures.”
- If the harassment is committed by a co-worker, then “the employer is liable if it knew or should have known about the harassment, unless the employer took immediate corrective action.”
The following list of sexual harassment lawsuits is a small sampling of the types of legal conundrums many fitness professionals and organizations are facing.
- Bikram Choudhury lost his yoga college and other assets in a $6.7 million sexual harassment case (Dominic 2016).
- A male employee of a fitness chain in California filed a claim that he was sexually harassed by his female supervisor. Among the allegations: She invited him for drinks, asked him to go to Las Vegas with her and sent “unwanted, suggestive text messages” (Club Industry 2011).
- A yoga student in New York City claimed she was harassed by her “guru” and was subjected to a cultlike environment. She sued for $1.6 million in six causes of action (Stromgren 2016b).
- A member (male) of a fitness facility chain alleged that another member (also male) sexually assaulted him and that the fitness center staff “knew of similar allegations about the defendant’s behavior prior to his complaints” (Stromgren 2016a).
- A former employee of a fitness chain sued her employers for “sex/gender discrimination, sexual assault, sexual harassment, retaliation and constructive discharge” (Goldman 2014).
- A man in Minnesota filed a lawsuit against a fitness chain and a former trainer he accused of sexually molesting him at the club as a teenager (Goldman 2013).
- A personal trainer in Florida was accused of sexual battery and kidnapping for allegedly raping a co-worker (Stromgren 2015).
Are you training or teaching without liability insurance because you think you can’t afford it? Or maybe you feel you don’t need it because you’re “careful”? There is much more to liability insurance than just negligence. If you’re accused of sexual harassment, for instance, your policy will cover your legal expenses, which otherwise could cost you tens of thousands of dollars. Find out more at ideafit.com/insurance.
Justin Seedman, owner of JustinFit, an in-home personal training company in Broward County, Florida, offers the following preventive guidelines that he uses in his own company. He and his employees are going into people’s homes; therefore, these particular guidelines are stringent. However, they are applicable to all.
- Screen your clients. The initial consultation offers a first-impression opportunity to assess a potential client’s true motivation and intention. Seedman’s rule of thumb is to trust your instincts. If you feel uncomfortable with a potential client, it’s better not to take that client on.
- Schedule workouts in a common area. Seedman specifically works with clients in the common areas of the house, including the family room, garage or pool deck—with an open door whenever possible.
- Keep the conversation focused on fitness. Keep the conversation about health and fitness. Don’t discuss personal topics. If clients bring up something off topic, redirect them.
- Initiate the topic of touching and comfortable attire. During the first meeting, make it a point to talk to clients about touching and the importance of proper attire. While Seedman never specifies what not to wear, he does emphasize the importance of wearing comfortable workout clothes.
- Always ask permission before touching. Even though clients are made aware that training involves touching to spot a movement, always ask beforehand. And it goes without saying: Never touch inappropriately.
- Position yourself strategically and safely. Be careful where you physically position yourself to avoid being in the line of sight of potentially problematic or easily misinterpreted areas, such as breasts.
- Compliment with care. Seedman’s staff is trained to tell clients they look “healthy” or “fit,” rather than “hot” or “beautiful,” which can easily be misconstrued.
In case you’re wondering, fitness professionals can lose their certifications for several reasons, including sexual harassment.
For instance, the American Council on Exercise Professional Practices and Disciplinary Procedures states: “The professional practices and disciplinary procedures of the American Council on Exercise® (ACE) are intended to assist and inform certificants, candidates for certification and the public of the ACE Application and Certification Standards relative to professional conduct and disciplinary procedures. ACE may revoke or otherwise take action with regard to the application or certification of an individual in the case of . . .” The council goes on to list many things, among them being sexual harassment (ACE 2018).
ACE (American Council on Exercise). 2018. ACE® code of ethics. Accessed Apr. 18, 2018: acefitness.org/fitness-certifications/certified-code-of-ethics.
Club Industry. 2011. Man files sexual harassment lawsuit against 24 Hour Fitness. Accessed Apr. 14, 2018: clubindustry.com/profits/man-files-sexual-harassment-lawsuit-against-24-hour-fitness.
Dominic, A. 2016. Bikram Choudhury will lose yoga college, other assets in $6.7 million sexual harassment case. Club Industry. Accessed Apr.16, 2018: clubindustry.com/commercial-clubs/bikram-choudhury-will-lose-yoga-college-other-assets-67-million-sexual-harassment.
EEOC (U.S. Equal Employment Opportunity Commission). 2018a. Time limits for filing a charge. Accessed Apr. 15, 2018: eeoc.gov/employees/timeliness.cfm.
EEOC 2018b. Facts about sexual harassment. Accessed Apr. 13, 2018: eeoc.gov/eeoc/publications/fs-sex.cfm.
FindLaw. 2018. Sexual harassment at work. Accessed Apr. 16, 2018: employment.findlaw.com/employment-discrimination/sexual-harassment-at-work.html.
Goldman, S. 2013. Man sues Life Time Fitness, accuses ex-trainer of sexual abuse. Club Industry. Accessed Apr. 14, 2018: clubindustry.com/lifetime-fitness/man-sues-life-time-fitness-accuses-ex-trainer-sexual-abuse.
Goldman, S. 2014. Planet Fitness operators sued for sexual harassment, discrimination. Club Industry. Accessed Apr. 13, 2018: clubindustry.com/planet-fitness/planet-fitness-operators-sued-sexual-harassment-discrimination.
SSH (Stop Street Harassment). 2018. Why stopping street harassment matters. Accessed Apr. 18, 2018: stopstreetharassment.org/about/what-is-street-harassment/why-stopping-street-harassment-matters/.
Stromgren, E. 2015. LA Fitness personal trainer faces sexual battery, kidnapping charges. Club Industry. Accessed Apr. 16, 2018: clubindustry.com/profits/la-fitness-personal-trainer-faces-sexual-battery-kidnapping-charges.
Stromgren, E. 2016a. Reports: Tennessee YMCA branch knew of sexual assaults by former advisory board member. Club Industry. Accessed Apr. 16, 2018: clubindustry.com/nonprofits/reports-tennessee-ymca-branch-knew-sexual-assaults-former-advisory-board-member.
Stromgren, E. 2016b. Yoga student alleges sexual assault, harassment in lawsuit against New York City studio. Club Industry. Accessed Apr.16, 2018:clubindustry.com/profits/yoga-student-alleges-sexual-assault-harassment-lawsuit-against-new-york-city-studio.
Vogel, A. 2007. Sexual harassment in the fitness workplace. IDEA Fitness Journal, 4 (10).