In Waters v. Town Sports Intl. Holdings, Inc., a Manhattan trial court held that plaintiff sufficiently alleged various claims arising from an incident in which he was essentially terrorized – he claims based on his sexual orientation – while patronizing a New York Sports Club.
The facts, in part:
On December 30, 2013, plaintiff, a gay man and a member of the specific NYSC gym for four years, entered the gym at 7:30 p.m. for his workout. After his workout, plaintiff returned to the locker room to use the shower, steam room and sauna.
Plaintiff disrobed, changed into a towel, and used the steam room. After spending approximately ten minutes in the steam room, he showered and entered the sauna. Two other men were using the sauna when plaintiff entered.
After approximately five minutes in the sauna, defendant John Smith (“Smith”), a member or employee whom plaintiff had never seen before, entered the sauna and screamed homophobic slurs at the three men, particularly focusing on plaintiff. Smith shouted epithets at the three men, including “What the f- – – is going on in here you disgusting faggots?” and “You can’t do things like that in here! I have people who train here!”
After this encounter, plaintiff alleges, he was further confronted, threatened, and berated as he tried to leave.
The court held that plaintiff stated claims for assault, battery, intentional infliction of emotional distress, and discrimination under the New York State and City Human Rights Laws.
The New York City Human Rights Law provides, in pertinent part:
[I]t shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public accommodation, because of the actual or perceived . . . sexual orientation . . . of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges.
The State Human Rights Law contains a parallel provision.
Applying these statutes, the court held that plaintiff stated a claim and denied defendants’ motion to dismiss:
[Defendant] TSI submits a copy of the sign containing TSI’s purported written policy regarding locker room/steam room/sauna conduct. The sign, posted in the men’s locker room before and on the date of the incident, unequivocally provides all members that any member engaging in “inappropriate conduct” of any kind in the steam room or sauna room may result in criminal prosecution as well as revocations of NYSC membership.
Although such policy, if enforced in accordance with its language, could be non-discriminatory, the facts allege that TSI (by its employees) enforced this purported written policy against homosexuals, and thus, based on plaintiff’s sexual orientation. Thus, the submission of the written policy, without more, fails to establish TSI’s entitlement to dismissal at this juncture. TSI also failed to establish that its employees would confront sexual activity among heterosexuals in the sauna in the same manner as its employees confronted plaintiff. TSI fails to make any sort of demonstration that its employees’ (including Smith’s) alleged behavior — and thus enforcement of its purported written policy — would be applied in the same way if plaintiff were heterosexual. TSI fails to demonstrate that it cannot be held vicariously liable for its employees’ alleged discriminatory actions, as it does not establish that the employees’ actions were beyond the scope of their duties (and/or its written policy).
TSI’s other arguments in the moving papers fail to alter the court’s conclusion. Although “plaintiff was not asked to leave the club at any time because of his sexual orientation”; “plaintiff does not allege that he was denied access to, or use of, the club”; and, “in accordance with club policy; the plaintiff was asked to relinquish his membership card because of the allegation that prohibited sexual activity of some kind had occurred in the club itself,” such assertions are insufficient to overcome plaintiff’s allegations to the contrary in describing the entirety of the alleged incident. Allegedly, plaintiff was chased from the sauna to the locker room, and then forced to escape the gym based on TSI’s employees’ homosexual animus, homosexually-based remarks, and pursuit of him while he was enjoying the privileges and use of the TSI gym.