by: Peter J. Gallagher (@pjsgallagher) (LinkedIn)
Some time ago, I wrote a blog post about a sign I saw at the beach, “Swimmers Only Between Flags.” It was a lighthearted post about the limitations of seemingly “plain” language. In Curto v. A County Place Condominium Association, the U.S. Circuit Court for the Third Circuit addressed a more serious issue involving swimming restrictions. Curto involved a challenge to a condo association’s policy of having gender-specific swimming hours at the community pool. The case presents an interesting intersection of discrimination — gender discrimination that was purportedly necessary to prevent religious discrimination. Read more about it below, and stay tuned because I am certain that the Curto decision will not be the last word on the issue.
In Curto, plaintiffs were residents of a condominium, A Country Place, which was governed by the defendant community association. A Country Place is a “55 and over,” age-restricted condominium located in Lakewood, New Jersey. As the Third Circuit noted, “Lakewood has a large and growing Orthodox Jewish population, and so does A Country Place.” Nearly two-thirds of defendant’s residents were Orthodox when the underlying events in Curto occurred. Defendant established single sex swimming hours for the community pool to accommodate “the Orthodox principle of tznius, or modesty, according to which it is improper for men and women to see each other in a state of undress – including bathing attire.”
Prior to 2016, defendant only had “a handful of sex-segregated swimming hours throughout the week.” But, “as the Orthodox membership at A Country Place increased, [defendant] increased the number of sex-segregated hours.” By 2016, over two-thirds of all swimming hours throughout the week were sex segregated.
Defendant’s swimming schedule established a total of 31.75 per week that were defined as “‘men’s swim,’ when women were prohibited from using the pool,” 34.25 hours for “‘women’s swim,’ when men were prohibited,” and only 25 hours “open to people of all genders.” The Third Circuit noted that these hours were not as even-handed as they might appear in the aggregate. For example, “[e]xcluding Saturday, which was left open for mixed-gender swimming because Orthodox residents would not go swimming on the Jewish Sabbath, only 12 hours during the other six days of the week were available for integrated swimming.” And, “a large number of the hours in the evening were set aside for men, including the period from 6:45 onward every day of the week (except Saturday), and the entire period from 4:00 p.m. onward on Friday.” Defendant’s representative explained the Friday afternoon schedule by noting that “women are at home preparing for the Sabbath during that time.”
Plaintiffs objected to the swimming schedule. One plaintiff wanted to swim with her family in the community pool after work. She testified that one of the reasons she chose to live at A Country Place was because of the pool. Another plaintiff wanted to swim with his wife, who needed pool therapy to recover from disabilities she suffered after a series of strokes. Defendant’s rules made it difficult, if not impossible, for plaintiffs to use the pool as they wished, so they ignored them. After plaintiffs were fined by defendant for violating the segregated swimming rules, they sued, alleging that defendant’s policy violated the federal Fair Housing Act and state law. Both sides moved for summary judgment. The district court granted defendant’s motion, holding that the policy was not discriminatory because “the gender-segregated schedule applies to men and women equally.” Plaintiffs appealed.
The Third Circuit reversed. It held that the Fair Housing Act prohibits discrimination based on gender (among other things). It further held that the defendant’s policy, on its face, discriminated against women and was, therefore, illegal. In doing so, the Third Circuit rejected defendant’s argument that its schedule allowed for “roughly equal swimming time for both men and women:”
[T]his is not enough to save the pool schedule, which discriminates in its allotment of different times to men and women in addition to employing sex as its criterion. Under the most recent version of the schedule, women are able to swim for only 3.5 hours after 5:00 p.m. on weeknights, compared to 16.5 hours for men. The schedule also assigns to men the entire period from 4:00 p.m. onward on Friday afternoons. 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 of men and women. 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.
The Third Circuit also rejected defendant’s argument that its pool schedule was not discriminatory because it was “not motivated by malice toward either sex.” The court held that “a showing of malice is not required where a plaintiff demonstrates that the challenged action involves disparate treatment through explicit facial discrimination.” In cases like that, “the focus is on the explicit terms of the discrimination,” not the motives of the party that is allegedly discriminating.
Accordingly, the Third Circuit reversed the district court and remanded the case with instructions that the district court should enter summary judgment in plaintiffs’ favor. In doing so, the court did not address plaintiffs’ argument that defendant’s policy was akin to the “separate but equal” framework rejected by the U.S. Supreme Court in Brown v. Board of Education. It also did not address defendant’s argument that “prohibiting single-sex swimming hours altogether would discriminate against the Orthodox Jewish residents and thereby itself violate the [Fair Housing Act].” The court held that it did not need to reach either because the pool schedule was “plainly discriminatory” on its face.
In a concurring opinion, however, Judge Fuentes expressed skepticism that defendant’s pool schedule would survive review under the “separate but equal” framework. He noted that “[o]ur vehement disapproval of segregation does not weaken when we adjudicate sex discrimination rather than racial discrimination cases,” and that “[w]e 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 [Fair Housing Act].”
Judge Fuentes also seemed skeptical of defendant’s claim that “if it did not discriminate on the basis of sex, it would be discriminating against its Orthodox Jewish population because they would be unable to use the swimming pool due to religious modesty laws.” Judge Fuentes noted: (1) the evidence in the record suggested that the defendant’s policy was “the will of the majority rather than . . . a necessary accommodation to Orthodox Jewish residents” (in support, Judge Fuentes cited to evidence in the record that defendant informed one of the plaintiffs that “the vast majority of people would abolish any mixed swimming, because that is the will of the majority”); and (2) there was no evidence in the record about the “number of Orthodox Jewish residents who use the pool, and no evidence of the number of Orthodox Jewish pool users who would be unable to use a mixed-sex pool due to religious objections.”