By Deborah Goonan, Independent American Communities
Three years ago, A Country Place Condominium Association, Lakewood, New Jersey, made national news when two of its residents clashed with the condo board over its sex-segregated swimming pool policies.
This week the U.S. Third Circuit Court struck down the condominium association’s swimming pool policy as a violation of the Fair Housing Act, because the swimming schedule favors men and discriminates against women.
The ruling overturns an earlier decision in favor of the condo association in District Court.
Specifically, the court held:
On the facts before us, the pool schedule discriminates against women in violation of the FHA. We need not determine whether sex- segregated swimming hours necessarily violate the FHA, or whether a sufficiently limited and more even-handed schedule might be justifiable, because the schedule actually adopted by the Condominium Association is plainly unequal in its allotment of favorable swimming times. Thus we reverse.
The Circuit Court relied on evidence that men-only swim hours after 5:00 PM on weeknights outnumbered women-only swimming hours by a 5 to 1 ratio. The majority of the court ruled that the schedule was discriminatory against women, but did not touch the issue of segregated-swim hours in general.
Justice Fuentes, however, took a stronger stance against discrimination in his concurring option:
While the majority opinion explains that we do not reach the issue of “whether sex-segregated swimming hours necessarily violate the FHA,”5 I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes. We would have no problem concluding, for example, that a pool schedule that allocates two-thirds of its hours to swimming segregated by race and one-third of its hours to “Integrated Swimming” would be intolerable under the FHA. And the FHA’s prohibition on discrimination does not distinguish between discrimination on the basis of sex and discrimination on the basis of race.6
Segregated swimming hours
In 2016, condo residents Steve and Diana Lusardi and Marie Curto, sued their condo association after they were fined for violating men-only and women-only swimming hours at their commonly owned swimming pool. Their lawsuit accused the condo association of discrimination under the Fair Housing Act.
Several news sources report that nearly 80% of the condo association’s residents, and all nine member of the condo board, are Orthodox Jews. Their faith forbids swimming or bathing with the opposite sex.
To accommodate their religious beliefs, the condo board enacted a weekday morning and afternoon swimming schedule for women-only. Men-only swim hours were scheduled for most evenings. Co-ed swimming was limited to the hours of 1 -3 PM on Sunday and weekdays, plus all day on Saturdays, the Jewish Sabbath.
The Plaintiffs in the Fair Housing lawsuit complained that non-Orthodox Jewish residents were unable to enjoy the pool with their partners, and that women were unable to swim during after-work hours on weekdays. Most of the swimming hours catered to Orthodox Jewish members, especially men.
According to an ACLU-NJ news release, the Lusardis moved to A Country Place after Diana suffered strokes in 2013, because she needed access to a pool for swim therapy. But the condo association fined the couple for swimming together during segregated-swim hours. Curto, who works full-time during the day, was fined for swimming during male-only swimming hours.
ACLU attorney Sandra Park and co-counsel José Roman of Powell & Roman LLC represented the Plaintiffs in the lawsuit.
National Fair Housing Alliance filed an Amicus brief on behalf of the condo residents. Pacific Justice Institute filed its Amicus brief for the condo association. ♦
Third Circuit Considers Sex-Segregated Swimming and the Fair Housing Act, Courthouse News, Alexadra Jones, March 5, 2019
Lakewood condo association’s sex-segregated pool schedule ruled unlawful
Andrew Ford and Stacey Barchenger, Asbury Park Press, Published 6:03 p.m. ET April 22, 2019 | Updated 1:08 p.m. ET April 23, 2019
ACLU-NJ: Court Strikes Down Discriminatory Rule in New Jersey Condominium Association
April 22, 2019, 5:09 pm (Press release)
Jeanne LoCicero, legal director at the ACLU of New Jersey had the following response:
“With today’s clear victory, other homeowner’s associations should take note that making rules based on outmoded gender stereotypes puts them at risk of liability under the Fair Housing Act.”