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Third Circuit Cracks Down on Sex-Segregated Swim Times

A seniors condominium that carved out prime-time pool hours for the Orthodox Jewish men in its community plainly discriminated against women, the Third Circuit ruled Monday.

PHILADELPHIA (CN) — A seniors condominium that carved out prime-time pool hours for the Orthodox Jewish men in its community plainly discriminated against women, the Third Circuit ruled Monday.

Located in Lakewood, New Jersey, the 55-and-over condo A Country Place has enforced sex-segregated swimming rules since it reopened the pool in 2011 after renovations.

A Country Place, like Lakewood itself, has seen its Orthodox Jewish population growing steadily over the years, and it adopted sex-segregation rules for the pool area to accommodate the Orthodox principle of tznius, or modesty.

By 2016, two-thirds of condo residents at A Country Place were Orthodox, and over two-thirds of all swimming hours throughout the week were sex-segregated. 

Marie Curto and Steve Lusardi, two residents who were fined $50 each by the condo board for their unsanctioned swim times, filed suit under the Fair Housing Act.

As noted in their complaint, Curto wanted to swim with her family after work, and Lusardi wanted to help his wife with pool therapy after a series of strokes in 2013 had caused physical disabilities.

A federal judge sided with the condo, but the Philadelphia-based Third Circuit appeals court reversed Monday.

As noted in the 17-page opinion, the segregated hours appear comparable on first glance — a total of 31.75 weekly hours devoted to men, and 34.25 hours defined as “women’s swim” — but a closer look at the hours shows inequalities.

Specifically, the schedule allows women to swim for only 3.5 hours after 5 p.m. on weeknights, whereas men get 16.5 hours. As for Fridays, when a representative for the condo association said women are busy preparing for the Sabbath, men get to use the pool all night after 4 p.m. 

“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,” U.S. Circuit Judge Thomas Ambro wrote for the court’s three-judge panel. “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.”

U.S. Circuit Judge Julio Fuentes noted in a concurring opinion that he would also rule that the condominium’s policy is per se facially discriminatory in violation of the FHA.

“Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes,” Fuentes wrote. 

Judge Fuentes took the condo to task as well for its lack of evidence.

“The association ... argued 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,” Fuentes wrote. “But there is no evidence in the record of 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.” 

Representatives for the challengers at the ACLU did not return an email seeking comment but praised the decision on Twitter. 

“The condo association argued their policy was fair to our clients because it allotted equal hours to men and women, but policies relying on gender stereotypes — such as assuming women are free during traditional business hours — will never be fair,” the ACLU tweeted.

Attorneys for the condominium at Costigan & Costigan did not return an email seeking comment.

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