Third Circuit Considers Sex-Segregated Swimming and the Fair Housing Act

PHILADELPHIA (CN) – The Third Circuit on Tuesday mulled over the question of whether a New Jersey condominium’s sex-segregated pool hours constitutes discrimination under the Fair Housing Act.

Country Place Condo Association, whose residents and board members are almost exclusively Orthodox Jews, enforces a pool policy that segregates based on sex for 75 percent of the pool’s open hours. The district court found the segregation to be legal because both women and men got equal swim time, but some residents argue that the pool’s schedule favors men by giving them more evening hours.

"It's very clear to me at least that men and women are treated differently in regards to the schedule," U.S. Circuit Judge Julio Fuentes said Tuesday, noting that women who work outside the home would likely have trouble using the pool.

"You're still under the Fair Housing Act treating men and women differently," he added.

The case began in 2016, when resident Marie Curto sued the condo association, claiming sex discrimination.

On Tuesday, ACLU attorney Sandra Park told the three-judge panel that the association’s pool policy bars men like her client, Steven Lusardi – who falls within the association’s 20 percent non-Orthodox Jewish population – from swimming with his wife.

The schedule allocates 4-6 hours of separate swimming for both women and men during the week, and it’s open to all genders Saturday. But Park noted that the schedule unequally allocates those hours, giving men preferential treatment during the work week.

“There are very few hours after 5 p.m. designated for women," she said, adding that the association grants men almost five times more hours after 5 p.m. than women. She said her clients are not interested in a compromise such as  arranging equal numbers of segregated pool hours during the workweek; instead, she suggested the Orthodox population use a “reservation system" to schedule certain hours for single-sex swimming.

Angela Costigan, representing the condo association, maintained that the district court’s ruling should stand.

"We believe the district court not only applied the facts correctly but applied the law correctly," she said.

According to Costigan, the 2016 schedule – which is still in effect – was tailored to the needs of the entire community. She said the association sent a poll and around 200 Orthodox residents said they needed separate hours to swim.

However, the panel seemed skeptical.

"It seems like your best argument isn't really developed here," U.S. Circuit Judge Stephanos Bibas said.

U.S. Circuit Judge Thomas Ambro questioned Costigan about whether she knew of any other place where public pools were segregated by race or gender.  She did not.

"We're trying to allow everyone to swim in the pool," she said, adding that 376 of the condo residents are Orthodox and the condo association’s nine-person panel is made up entirely of Orthodox Jews.

Despite that, Ambro pointed out that the condo association is not protected as a religious organization under the FHA – so Costigan must be able to show that the religious rights of Orthodox members are truly relevant.

Park is requesting a reversal of the district court's ruling to find discrimination under the Fair Housing Act.

“We believe it should be a gender-integrated schedule,” she said.

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