Condo Pool Schedule Discriminatory, Judges Rule

LAKEWOOD, NJ — Swimming pool use times that are segregated by sex at a Lakewood condominium complex have been ruled discriminatory by a federal appeals court.

In a ruling issued Monday, the U.S. Court of Appeals for the Third Circuit ruled unanimously in overturning a lower court's summary judgment that a schedule of segregated pool use times at A Country Place in Lakewood was acceptable under the federal Fair Housing Act.

"The schedule actually adopted by the Condominium Association is plainly unequal in its allotment of favorable swimming times," Judge Thomas L. Ambro wrote in the unanimous opinion reached by the panel, which also included Judge Stephanos Bibas and Judge Julio M. Fuentes.

Marie Curto and Steve and Diana Lusardi filed suit in September 2016 against the condominium association of A Country Place after both were fined for violations of pool rules put in place to accommodate the modesty requirements of Orthodox Jewish residents of the complex. Read more: Condo Owners File Discrimination Suit Over Single-Sex Pool Rules: Report

The suit alleged the pool use schedule, which limited the pool to men only after 6 p.m. on weekdays, women only in the mornings and allowed for just 12 hours of co-ed use during the week at times that were not convenient for people who worked regular business hours (along with Saturday) effectively discriminated against the women.

Curto wanted to use the pool with her family; the Lusardis sought to use the pool to help Diana's physical therapy routine as she recovered from strokes, according to the court ruling. But the hours that were allotted for mixed-gender use effectively prevented them from using the pool except for Saturdays.

Both couples have since sold their condos and moved, though the court ruling specifically notes it has no impact on the appellate ruling.

The summary judgment ruling rejected the lawsuit on the grounds "the gender-segregated schedule applies to men and women equally."

The appellate court rejected that statement.

Saying that while the schedule offers "roughly equal" swimming time for men and women overall, the design of the schedule is discriminatory because it is based on sex, Ambro wrote.

"Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles ofmen and women," he wrote, something that is specifically forbidden under the Fair Housing Act, which applies to the pool because it is a community facility that residents have a right to use as part of owning or renting int the community.

The most recent version of the schedule, the court said, allotted women only 3.5 hours of swimming after 5 p.m. on weeknights.

The 14th Amendment forbids sex classifications based on “overbroad generalizations about the different talents, capacities, or preferences” of men and women, and gender classifications "must be “free of fixed notions concerning the roles and abilities" of men and women, Ambro wrote, citing two earlier rulings.

"In light of these specific inequitable features, the schedule discriminates against women under the FHA even though it provides roughly equal aggregate swimming time to each gender," he wrote. "In this context we reverse and remand the case to the District Court to enter summary judgment in favor of the plaintiffs on their claim under the Fair Housing Act."

Fuentes wrote a supporting opinion, saying the condo association's contention that its schedule provided equal access with its separate hours, saying the U.S. Supreme Court long ago ruled in Brown vs. Board of Education, the landmark education ruling the forced desegregation of schools in the United States, that "the doctrine of 'separate but equal' has no place" because separate facilities are "inherently unequal."

"Our vehement disapproval of segregation does not weaken when we adjudicate sex discrimination rather than racial discrimination cases," Fuentes wrote.

"Separate but equal treatment on the basis of sex is as self-contradictory as separate but equal on the basis of race,” he wrote, citing a Sixth Circuit ruling in an employment case.

The condo association had argued that removal of the segregated schedule would lead to the Orthodox Jewish residents of the community being unable to use the pool due to modesty requirements of their religious beliefs, but Fuentes wrote the association presented no evidence demonstrating many people would be affected if its sex-segregated swimming hours were overturned.

In a footnote in the ruling, the judges addressed the issue of the religious beliefs, saying that while the pool use policy "was motivated by the Orthodox Jewish residents’ religious beliefs, the Association did not mention the Religious Freedom Restoration Act ... at any point in its filings in the District Court or in its merits brief before us."

"Thus we determine that the Association has waived any possible RFRA defense to the plaintiffs’ FHA claim," the footnote said.

The judges also said the condominium association didn't have the standing to assert a defense based on the religious free exercise rights of its Orthodox Jewish members.

"To have associational standing, (1) individual members must have standing in their own right, (2) the interest asserted must be germane to the purpose of the organization, and (3) neither the claim nor the relief requested must require the participation of the individual members in the lawsuit," the footnote said.

The condominium association of A Country Place does not have religious purpose, so it does not have the standing to make the religious free exercise claim, the judges said.

Read the ruling below.

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