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Curto v. A COUNTRY PLACE CONDOMINIUM ASSOCIATION

Court of Appeals for the Third Circuit
921 F.3d 405 (2019)
ELI5:

Rule of Law:

A policy segregating a community facility by sex violates the Fair Housing Act when it provides one sex with a qualitatively superior allotment of access times, even if the total hours allocated to each sex are roughly equal. Such a schedule is discriminatory if it relies on overbroad generalizations or stereotypes about the roles of men and women.


Facts:

  • A Country Place is a '55 and over' condominium community in Lakewood, New Jersey, where approximately two-thirds of the residents were Orthodox Jewish.
  • To accommodate the Orthodox Jewish religious principle of modesty (tznius), the Condominium Association adopted rules creating sex-segregated hours for its community pool.
  • In 2016, the Association's Board of Directors significantly expanded the segregated hours, dedicating over two-thirds of the pool's weekly operating time to either 'men's swim' or 'women's swim'.
  • The 2016 schedule allocated a large majority of the evening hours on weeknights to men, as well as the entire period from 4:00 p.m. onward on Fridays.
  • Plaintiff Marie Curto wished to use the pool with her family.
  • Plaintiffs Steve and Diana Lusardi, a married couple, wished to use the pool together for Diana's aquatic therapy following several strokes.
  • After the plaintiffs used the pool in violation of the sex-segregated schedule, the Board fined them $50 each.
  • The Association later modified the schedule, but it still provided 56 hours of segregated swimming and only 12 hours of integrated swimming from Sunday through Friday.

Procedural Posture:

  • Marie Curto and Steve and Diana Lusardi (plaintiffs) filed a complaint against A Country Place Condominium Association (defendant) in the U.S. District Court for the District of New Jersey.
  • The complaint alleged violations of the federal Fair Housing Act and various state laws.
  • Following discovery, both parties moved for summary judgment.
  • The District Court granted summary judgment in favor of the Condominium Association on the FHA claim, concluding that the schedule applied equally to men and women.
  • The District Court then declined to exercise supplemental jurisdiction over the remaining state law claims.
  • The plaintiffs (appellants) appealed the District Court's grant of summary judgment to the U.S. Court of Appeals for the Third Circuit.

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Issue:

Does a condominium association's sex-segregated swimming pool schedule violate the Fair Housing Act's prohibition on sex discrimination in the provision of facilities when, despite allocating roughly equal total hours to men and women, it disproportionately assigns more desirable times, such as evenings, to men?


Opinions:

Majority - Ambro, Circuit Judge

Yes, the pool schedule violates the Fair Housing Act. A policy that is facially discriminatory does not require a showing of malice; the focus is on the explicit terms of the discrimination. While the association provided roughly equal aggregate swimming time to each gender, this is insufficient to save the schedule. The policy discriminates by allotting qualitatively different and more favorable times to men, such as the majority of evening hours during the work week. This disparate allotment appears to be based on impermissible stereotypes and 'overbroad generalizations about the different talents, capacities, or preferences' of men and women, resulting in women with regular-hour jobs having little access to the pool. Therefore, this specific schedule is unequal and constitutes discrimination in the terms and privileges of a facility under the FHA.


Concurring - Fuentes, Circuit Judge

Yes, the pool schedule violates the FHA, but the majority's reasoning is too narrow. The very concept of 'separate but equal' is inherently discriminatory and has no place in sex discrimination jurisprudence, just as it has no place in race discrimination. I am skeptical that any sex-segregated schedule could be lawful, even with a more even allocation of hours. The FHA's prohibition on discrimination does not distinguish between race and sex. Furthermore, the Condominium Association failed to provide any evidence to legally justify its facially discriminatory policy, such as showing it benefits the protected class or responds to safety concerns, and it waived any defense under the Religious Freedom Restoration Act.



Analysis:

This decision clarifies that under the Fair Housing Act, a 'separate but equal' defense for sex-based facility segregation is invalid if the practical effect is unequal. The court established that an analysis of discrimination must look beyond quantitative equality (total hours) to qualitative equality (value and desirability of those hours). By focusing on how the schedule reflected gender stereotypes, the ruling signals that courts will apply heightened scrutiny to policies that reinforce traditional gender roles. While the court stopped short of a per se ban on all sex-segregated facilities, it significantly raises the bar for housing providers to justify such policies, requiring a truly equal and non-stereotype-based allocation of privileges.

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