On April 22, 2019, the United States Court of Appeals for the Third Circuit held that a condominium association’s gender-segregated pool schedule policy discriminated against women at a predominantly Orthodox Jewish community in Lakewood, New Jersey. See Curto v. A Country Place Condo. Ass'n, Inc., 2019 WL 1758320 (3d Cir. Apr. 22, 2019). The plaintiffs, Maria Curto, Steve Lusardi and Diana Lusardi (collectively, “Plaintiffs”), brought an action against A Country Place Condominium Association, Inc. (the “Association”), alleging that the Association’s policy of gender-segregated swimming hours at a community pool violated the Fair Housing Act, 42 U.S.C. § 3604(b) (“FHA”). The United States District Court for the District of New Jersey granted the Association’s motion for summary judgment on the grounds that the gender-segregated schedule applied to both men and women equally. The Plaintiffs’ appeal followed.

By way of background, the Association is a “55 and over” age-restricted condominium association located in Lakewood. In 2016, at the time the events in this litigation took place, approximately two–thirds of the Association’s residents were Orthodox. In order to accommodate the religious beliefs of the Orthodox residents, the Association adopted rules for pool use creating certain hours when only members of a single sex were allowed to use the pool. Before 2016, the schedules provided for only a handful of gender-segregated swimming hours throughout the week, but as the number of Orthodox residents at the Association grew, the Association increased the number of gender-segregated hours.

Under the gender-segregated pool schedule, a total of 31.75 hours each week were reserved for men, while 34.25 hours were reserved for women. 25 hours were open to people of all genders. Excluding Saturday, which was left open for mixed-gender swimming because the Orthodox residents do not swim on the Jewish Sabbath, 12 hours during the other six days of the week were left available for integrated swimming. Sometime after the dispute with the Plaintiffs began, the Association adopted a modified schedule. However, the only significant change was expanding the “adult residents only” period of “ladies’ swim.” Specifically, the revised schedule provided for 56 hours of segregated hours (32.5 hours for men and 33.5 hours for women), along with the same 12 hours of integrated swimming Sunday through Friday.

On June 15, 2016, a resident at the Association notified the Board that Marie Curto had been swimming during a time reserved only for male residents. In order to address the resident’s complaint, the Board held a meeting the following day. At the Board meeting, Steve Lusardi, who resided at the Association with his wife Diana Lusardi, also challenged the gender-segregated pool schedule as discriminatory. Mr. Lusardi explained to the Board that in 2013, his wife suffered from two strokes, which resulted in physical disabilities. Thus, in order to recover from her injuries, his wife needed to utilize the pool with him so that he could assist her in pool therapy.

In violation of the Association’s pool schedule, the Plaintiffs continued to use the pool and were fined $50.00 each by the Board. The Plaintiffs then filed a complaint alleging violations of the FHA as well as several New Jersey State laws regarding both discrimination and the rules for condominium associations. After the District Court granted the Association’s motion for summary judgment, Plaintiffs appealed.

In reviewing the District Court’s order in favor of the Association, the Third Circuit stated that the FHA:

makes it an unlawful housing practice to ‘discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities therewith, because of race, color, religion, sex, familial status, or national origin’. . . this includes ‘[l]imiting the use of privileges, services or facilities associated with a dwelling because of race, color, religion, sex, handicap, familial status, or national origin of an owner, tenant or a person associated with him or her.’

The Court found that, although the Association’s pool use policy was motivated by the Orthodox Jewish residents’ religious beliefs, the Association waived any possible defense under the Religious Freedom Restoration Act, 42 U.S.C. §2000bb et seq. (“RFRA”), as the Association did not mention the RFRA at any point in its filings. However, the Court further explained that even had the Association raised a RFRA defense, it lacked associational standing to assert the religious free exercise rights of its Orthodox Jewish members as the Association did not have a religious purpose.

The Court stated that “[w]here a regulation or policy facially discriminates on the basis of the protected trait, in certain circumstances it may constitute per se or explicit discrimination because the protected trait by definition plays a role in the decision-making process.” The Court further noted that while the Association argued that its pool schedule was not motivated by malice towards either sex, malice is not required “where a plaintiff demonstrates that the challenged action involves disparate treatment through explicit facial discrimination . . . Rather, the focus is on the explicit terms of the discrimination.”

Additionally, the Court rejected the Association’s argument that the pool schedule allowed for roughly equal swimming time for both men and women. The Court held that the express terms of the pool policy were discriminatory in its allotment of different times to men and women in addition to employing sex as its criterion. The Court further found the pool schedule reflected “particular assumptions” about the roles of men and women, in violation of the Fourteenth Amendment. Citing to the express terms of the pool policy, the Court noted that the pool schedule assigned to men the entire period of 6:45 p.m. onward every day of the week (except Saturday) and from 4:00 p.m. onward on Friday afternoons. Thus, women who were working during the day had little access to the pool during the work week. In other words, the pool schedule’s gender-based distinctions hinged on the assumption that women would be home during the day to access the pool. As such, the Court found the pool schedule discriminates against women in violation of the FHA.

In a concurring opinion, Judge Fuentes expresses his “skepticism” that the Association’s gender-segregated pool schedule could be saved by a more even allocation of evening hours, stating that “separate but equal treatment on the basis of sex is as self-contradictory as separate but equal on the basis of race.”