In a decision issued on April 22, 2019, the United States Court of Appeals for the Third Circuit has determined that rules providing for sex-segregating swimming schedules (separate women-only and men-only times) violate the federal Fair Housing Act (“FHA”), 42 U.S.C. §§ 3601 et seq.
In 2016, the 55+ age-restricted community, A Country Place Condominium Association, in Lakewood, NJ, adopted rules for the use of its community pool, which designated certain hours when only members of a single sex were allowed to swim. This was done, according to the case, to accommodate the approximately 2/3rds population of Orthodox Jews living in the association and the Orthodox Jewish principle of modesty. This principle means that the Orthodox residents are not supposed to swim at a time when members of the opposite sex might be present. According to the decision, men’s swim time encompassed 32.5 hours per week while 33.5 hours were allocated to women’s swims. Only 25 hours were open to mixed swims, of which 13 hours were on Saturdays when Orthodox residents would not swim due to the Jewish Sabbath.
Three individuals (“plaintiffs”) who challenged these rules were found in violation and fined by the association. They filed a complaint in federal court alleging violations of the FHA and the New Jersey Law Against Discrimination. After discovery in the trial court, both the plaintiffs and the association filed motions for summary judgment. The District Court ruled in favor of the defendant association because it found that “the gender-segregated schedule applies to men and women equally.” The plaintiffs appealed.
The Court of Appeals reversed and found in favor of the plaintiffs. While the association argued that the pool schedule was not discriminatory because it was not a manifestation of malice against either men or women, the Court found that it violated the FHA because the policy involved explicit discrimination on its face. Even though the time reserved for men and women was nearly equal, the schedule allowed women to swim for only 3.5 hours after 5:00 P.M. on weeknights while men were allowed 16.5 hours during these periods. Men were also given the entire period after 4:00 P.M. on Friday afternoons. Since women with jobs having “normal” business hours would have little opportunity for swimming during the work week, the Court found that the schedule discriminated against women under the FHA.
It is instructive to note what the Court did not decide. The plaintiffs argued that any sex-segregated schedule would violate the FHA, but the Court refused to address that argument because the specific schedule of the association was “plainly discriminatory in its specifics.” It also declined to address the association’s argument that prohibiting single-sex swimming hours altogether would violate the FHA by discriminating against the Orthodox Jewish residents. The Court said that the association did not substantiate its claim because it did not show how many Orthodox residents use the pool or would not use it during a mixed-sex schedule.
One further note: The majority opinion declined to address the plaintiff’s contention that any schedule of single-sex swimming would violate the FHA because it would be akin to the concept of “separate but equal” in racial discrimination cases. However, the concurring opinion did address the issue saying: “Our vehement disapproval of segregation does not weaken when we adjudicate sex discrimination rather than racial discrimination cases.”
Conclusion: We doubt that this case is the last word on the issue of sex-segregated swim schedules. However, we strongly suggest that every association consult with counsel prior to adopting any rules (pool or otherwise) that could be considered discriminatory based on the basis of sex, race, religion, handicap, familial status (i.e,, rules affecting children) or otherwise.
You can view the Third Circuit’s decision in Curto v. A Country Place Condominium Association by clicking here.
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