On April 22nd, the United States Court of Appeals for the Third Circuit invalidated a New Jersey condominium association’s gender-segregated pool schedule policy ruling that it violated women’s rights by setting separate swimming hours for male and female residents. The Court said the schedule adopted by A Country Place’s condominium association was “plainly unequal in its allotment of favorable swimming times.”
In a split decision that included a concurring opinion, the three-judge panel’s majority acknowledged the pool segregation schedule, crafted with the community’s growing Orthodox Jewish population in mind, allows for roughly the same amount of time each week for males and females. But women with “regular-hour” jobs have little access to the pool during the workweek compared to men, the majority concluded, handing a victory to three residents who challenged the rule.
“In light of these specific inequitable features, the schedule discriminates against women under the Fair Housing Act even though it provides roughly equal aggregate swimming time to each gender,” Third Circuit Judge Thomas L. Ambro wrote, joined by Third Circuit Judge Stephanos Bibas.
In a concurring opinion, Judge Julio M. Fuentes expressed doubt that even a more favorable allocation of swimming times could “save” the schedule.
“Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes,” Judge Fuentes said.
During a March oral argument, plaintiffs Marie Curto, Diana Lusardi and Steve Lusardi claimed their association was “advancing social inferiority based on gender.”
For its part, the association had asserted that absent the segregation rule, it would have been discriminating against the community’s Orthodox Jewish population.
Judge Fuentes noted that the case marked the first time the Third Circuit had ever considered religious exceptions to the FHA, and that the “stark difference” between the time slots allotted to men versus women perpetrated a gender stereotype about the likelihood of women working during the day.
The condo association instituted the pool rule in June 2011 in response to the growing Orthodox Jewish population in the 376-unit, 55-and-older community, according to court records. The weekly schedule features alternating time slots for men and women on most days, with integrated swimming permitted all day Saturday and from 1pm to 3pm Monday through Friday.
The Lusardis purchased their residence with plans to use the pool together as therapy to aid in Diana Lusardi’s recovery from a stroke, and Curto claimed she moved into the community in part to use the pool with her family, which includes a son and grandson, the brief said. Curto also said that she has limited use of the pool after work because most of the night hours are reserved for men.
During the summer of 2016, the Lusardi and Curto households were each fined $50 for violating the rules. Their lawsuit was first filed in New Jersey state court in Ocean County and then removed to New Jersey federal court in September 2016.
In January 2018, U.S. District Judge Brian R. Martinotti granted summary judgment to the condo association after agreeing with its argument that the gender-segregated schedule applies to men and women equally and therefore didn’t violate any laws.
An attorney for the association, Angela Costigan, said she was pleased the court only disapproved of the scheduled night hours.
Representatives for the plaintiffs didn’t immediately have a comment.
Third Circuit Judges Stephanos Bibas, Thomas L. Ambro and Julio M. Fuentes sat on the panel for the Third Circuit.
The residents are represented by Lenora M. Lapidus, Heather L. Weaver, Sandra S. Park and Daniel Mach of the American Civil Liberties Union (“ACLU”), Jeanne LoCicero and Liza F. Weisberg of the American Civil Liberties Union of New Jersey Foundation and Jose D. Roman of Powell & Roman, LLC.
The association is represented by Angela M. Costigan and Richard Costigan of Costigan & Costigan, LLC.
The case is Marie Curto et al. v. Country Place Condominium Association Inc., case number 18-1212, in the U.S. Court of Appeals for the Third Circuit.
StraighforWARD Legal Advice:
Condominium Associations in New Jersey should seek legal advice regarding matters of discrimination of any kind including, but not limited to, gender, religion, race, national origin, age, disability and sexual orientation. Counsel will likely provide a different perspective that could, and likely should, be considered to assist in minimizing risk. Ward Law, LLC specializes in the defense of condominium association. For more information, please do not hesitate to visit us at www.thewardlaw.com or contact us 215-647-6600.