Sometimes, a community association tries to accommodate religious preferences and ends up discriminating on another basis. That is what happened in Curto v A Country Place Condominium Association, Inc., according to the U.S. Court of Appeals for the Third Circuit in a New Jersey condominium case handed down yesterday.
In this case, the condominium had a large Orthodox Jewish population whose religious practices prohibited men and women from swimming together in the condominium pool. The association, wishing to find a way for both men and women to use the pool, came up with a schedule that provided certain hours for men and women only swim, and certain hours for men and women to swim together. A total of 31.75 hours were set aside for men’s swim, 34.25 for women to swim, and 25 hours were open to swimmers of both sexes. Most of the women’s swim time was during the daytime hours, with the majority of evening hours from 6:45 p.m. set aside for men.
So, what was the problem? While trying to accommodate the Orthodox Jewish swimming separation and modesty requirements, the association bought into gender stereotypes about male and female activities and schedules. They assumed that women were home and free during the day and could swim then, and that men who worked during the day needed the evening hours to swim. It is interesting as well to note that the condominium was a 55 and over community, so one might presume that many of the residents would be retired and able to swim throughout the day if they wished.
Steve and Diana Lusardi were a married couple who lived in the condominium and who needed to use the pool together because of the wife’s disability. Marie Curto, another condominium unit owner, worked during the day and was not able to swim during the women’s designated swimming times. The Lusardis and Curto used the pool in violation of the designated swim schedule for their sex and were fined $50.00 for each day that they did so. They brought suit against the condominium alleging discrimination under both the federal Fair Housing Act and New Jersey state law. The New Jersey District Court found that the association’s swim policies were gender neutral, in that they applied to men and women equally and entered summary judgment in favor of the association. On appeal, the U.S. Court of Appeals found that the swim schedule was plainly unequal in its allotment of swim hours and reversed. Importantly, the Court noted that it did not matter that the association’s challenged policy was not motivated by malice towards either sex. What matters was that men and women were treated differently in a way that effectively hurt women and working women.
The Fair Housing climate can be tricky to navigate, as seen in this case. Community associations frequently struggle with accommodating changing populations and increasing diversity in ways that are respectful but fair. The take away from this case is not that associations should stop trying to do this, but instead that careful consideration has to be given to all policies and rules to make sure that protecting the rights of one group does not hurt the rights of another.
Please contact one of Law Firm Carolinas.’s community association attorneys in our Charlotte, Greensboro, Triangle or Coastal offices to discuss Fair Housing or other community association related questions.