Limited liability is not a Constitutional right, especially when the company attempting to hide under it breaches its own safety measures by deliberately creating a hostile environment in the workplace. Such is the case with 24 Hour Fitness, a $1.5 billion corporation which refuses to accept responsibility for the consequences of its own errors.
In June, a former club employee was awarded $3.5 million for enduring two years of sexual harassment because the CEO, Mark Mastrov, denied the allegations because the harassers were deemed profitable for his company. Considering that 24 Hour Fitness is an entity which prides itself in its ethics, quality, and generally high standards of employee conduct, to have permitted this type of behavior seems to contradict those same principles on which theyre supposedly established. Yet contradictions, apparently, are what 24 Hour Fitness is all about.
A few months ago I was attacked by a man at their facility in Canoga Park, California. Rather than notifying the police, the club employees insisted that they would handle the matter internally; moreover, they discouraged me from calling the police by implying that this man, who was an Iranian cage fighter, might retaliate.
Now, according to their regulations, aggravated battery is grounds for immediate dismissal from the club, let alone tossing two 35 pound weights across the room and nearly crushing a bystander's knee, as well as the use of racial epithets, all of which he was guilty. Nonetheless, two days later this miscreant was back, pushing the men around and sexually harassing the female clientele, the aforementioned transgressions being perpetrated with no fear of reprisal.
According to the club manager, Michael Leonard, the rationale for tolerating this behavior was that so long as this person didn't seriously injure anyone, he wasn't a liability.in fact, the club employees treated him like a celebrity, even to the extent of allowing him into the club without checking him in at the front desk, which was, according to their rules, yet another violation of club policy.
That being said, it appeared as though breaking their own rules was acceptable so long as they did so on behalf of some pseudo-celebrity who they felt, despite his violent propensities, might somehow benefit their public image. Otherwise they would have forced him to leave, permanently, because to have condoned this behavior would have constituted a breach of contract against all of their other members for knowingly and willfully subjecting them to an environmental hazard that was not disclosed in their membership agreement.
After speaking with my attorney, one employee explained to him that even he, way up in the Bay Area at the corporation's headquarters, had been aware of such incidents, of which there had been several over the years, all involving this same person, and that pursuant to their discussion this person would never step foot in another one of their gyms. Yet two weeks later this same employee rescinded that statement, which subsequently prompted a lawsuit for premises liability.
This lawsuit, of course, began with a review of their membership agreement. According to this agreement, lawsuits exceeding $5000 are subject to binding arbitration, which is a process that is conducted in private, without a judge or jury, and then the results are sealed so as to keep them from public knowledge.in other words, 24 Hour Fitness can allow this person to assault, batter, and possibly even kill someone and the public would never hear about it because their membership agreement forbids such disclosure; a dubious piece of paper which, when read closely, also absolves them from any liabilities arising from third-party offenses.
Yet stop for a minute. How can 24 Hour Fitness wash the blood from its hands if their own people, including their CEO, have known about these incidents for years yet continue to allow them to occur? Their contract clearly states that they have the right to terminate your membership if your conduct is improper or harmful to the best interest of 24 Hour Fitness or its members. So why would they be willing to violate certain contingencies within their own membership agreement to cover up for a man who was mentally incapable of behaving himself in a gym? Particularly when Section 387 of the California Criminal Code requires the disclosure of serious concealed dangers in the workplace. Or workout place, in this particular instance.
Attacking their members, throwing weights at people, vandalizing club property coupled with the spontaneity of his outbursts should qualify this individual as one of these dangers, yet despite those qualifications 24 Hour Fitness continues to indulge him. And clearly that does not make any sense. Unless of course, it all comes down to the almighty dollar; in some veiled capacity, perhaps he's worth something to them, just like those sexual harassers were up in the Bay Area. The one's who cost them $3.5 million.
The worst of it is that now 24 Hour Fitness is using its membership agreement as an excuse with which to maintain its innocence, as per that agreement they assume responsibility for nothing; which is spineless, considering that they had knowledge of these incidents. Moreover, being that 24 Hour Fitness is not an independent state, it should not be allowed to enact policies which supercede laws that are defined by the state of California.
A contract may be a legally binding document, yet when a corporation deliberately breaches it by permitting activities that are a violation of California State laws, that contract should be null and void under the doctrine unconscionability, meaning that no reasonable person would ever sign it if they knew that, under 24 Hour Fitness's arbitration clause, they would be waiving their right to a judicial forum in the event of a lawsuit. Case in point: no one signed up to be brutalized by their resident troglodyte, especially if the victim would be denied due process because 24 Hour Fitness's arbitration clause terminated that right. After all, this is a democracy, not a dictatorship. Furthermore, 24 Hour Fitness has no Congressional authority to pass legislation forcing any person to waive their rights to a judge and jury in suits at common law, as such an act would be a violation of the Seventh Amendment, as well as a violation of the Fair Trading Act of 1999, Section 32X, regarding the assessment of unfair terms within a contract, terms of which the majority of consumers would never even be aware.
Under Section 32C of this Act, just because a person signs a contract does not mean that he or she is aware of every provision within that contract, and therefore a court could decide to strike an arbitration provision because it limits the consumer's right to sue the supplier; particularly in a case like this, where common sense dictates that in matters of a gym membership the existence of such a provision would seldom be discussed unless it were brought up by a prospective (and highly astute) client, as many gym attendees have likely never even heard of arbitration. Furthermore, 24 Hour Fitness's contracts are often signed under pressure and are submitted by some overzealous employee, usually some college kid, who is more interested in closing the deal rather than disclosing a provision that might otherwise jeopardize it. At the same time, however, due to that failure to disclose, that makes that same contract vulnerable to judicial recourse and, therefore, not quite as impenetrable as their lawyers would have one think.
Moreover, I suppose because their contract states that they can terminate your membership without cause and for any reason, then they can do so on the basis of race, religion, or political affiliation. After all, the phrase any reason is subject to interpretation; meaning that, if they so mandate, discrimination is perfectly acceptable. So if they terminated my membership because I were a minority (which I am) and I wanted to sue them for racial discrimination it would cost me $1100, which covers only the initial filing fee, and the case would be arbitrated in private, without the benefit of a judge or jury even though the Constitution grants me those rights. And that is simply absurd. Or as the courts would say, unconscionable.
Consequently, although their contract may absolve them from liabilities arising from negligence alone, it does not absolve them from gross and malicious negligence by harboring an individual who uses terrorism as a means of asserting his dominance in the social hierarchy. And this is all done with 24 Hour Fitness's approval, as is evidenced by its chronic refusal to remedy these circumstances.
If a felony is committed once on their premises, then they can claim that it was unforeseeable. If it happens twice, three times, or any more than that, and it is perpetrated by the same individual, then that would qualify as gross, voluntary, and malicious negligence, thus making 24 Hour Fitness guilty of premises liability. And since that liability was precipitated by their deliberate failure to protect their clients from an active threat, coupled with the fact that they consciously violated state law by withholding information pertaining to that threat, all victims should be entitled to a court trial because the issues being discussed are public issues and should therefore be open to public scrutiny.
Such being the case, perhaps it's time that Congress passed legislation protecting consumers from devious corporations like 24 Hour Fitness, especially when said corporation attempts to justify its trickery under the ruse of defense from frivolous lawsuits. Yet the truth is, in this case they're far from innocent, regardless of whatever their liability clause states. And to demand arbitration knowing that victims will just give up when faced by the inequities of said process is a flagrant abuse of the American justice system; because in defense of the public, they have no right, Constitutional or otherwise, to subject their clients to the aforementioned abuses and then deny responsibility for the consequences of their transgressions.
A business protecting itself from reckless litigation is one thing, yet when that same business attempts to strip consumers of their Constitutional rights this is about as close as one can get to a provisional exercise in modern fascism.
Roger
West Hills, California
U.S.A.
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