James A. Byrne federal courthouse in Philadelphia. (Photo: Paul D’Annunzio/ALM)

The U.S. Court of Appeals for the Third Circuit has ruled that a condominium community with a sex-segregated schedule for its swimming pool is discriminating against women in violation of the Fair Housing Act.

The panel overturned a U.S. District Court judge who said that setting aside separate swim hours for men and women was not discriminatory because it applied to both sexes equally.

Separate swimming hours for men and women were adopted at the condominium in a nod to its mostly Orthodox Jewish residents, who consider it improper for men and women to view each other in swimming attire. But a lawsuit was filed by residents Marie Curto, who wanted to swim with her family after work, and Diana and Steve Lusardi, a married couple who wished to swim together because Diana Lusardi suffered disabilities after a stroke.

Curto and the Lusardis filed suit under the FHA, and they asserted supplemental state-law claims.

The appeals court said the condominium association for A Country Place, in Lakewood, violated the FHA because the schedule was “plainly unequal in its allotment of favorable swimming times,” allocating most evening swim time to men. “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,” Judge Thomas Ambro wrote for the court.

The panel reversed and remanded the case for an entry of summary judgment for the plaintiffs.

The suit was filed in state court in September 2016 and was later removed to federal court.

U.S. District Judge Brian Martinotti dismissed the case after finding that the pool schedule treated men and women equally, and therefore did not discriminate.

The plaintiffs said the gender-segregated pool-use policy would still violate the FHA even if it burdened men and women equally, as the district court concluded. They likened the association’s arguments as akin to the “separate but equal” framework that was rejected by the U.S. Supreme Court in Brown v. Board of Education. But the panel of Judges Ambro, Stephanos Bibas and Julio Fuentes declined to address that issue.

Before 2016, the pool schedule provided a small number of single-sex swimming hours, but in 2016, as the population of Orthodox Jews in the community increased, the association adopted a new schedule with greatly increased segregated swimming hours. A schedule was adopted providing 31.75 hours per week designated as “men’s swim,” 34.25 hours for “women’s swim,” and 25 hours for people of all genders. Excluding Saturday, which was for all genders because Orthodox residents did not swim on the Jewish Sabbath, most of the evening hours were set aside for men, including the period from 4 p.m. onward on Fridays. An administrator of the association said in a deposition that Friday evenings were set aside for men’s swimming because women were at home preparing for the Sabbath at that time.

Although the association’s pool use policy was motivated by the Orthodox Jewish residents’ religious beliefs, the association did not raise the Religious Freedom Restoration Act as a defense, and therefore was deemed to have waived any possible RFRA defense to the plaintiffs’ FHA claim.

Ambro, writing for the court, said the appeals court would not address the plaintiff’s “separate but equal” contention, or its “potentially far-reaching implications,” because the pool schedule is plainly discriminatory.

Fuentes, in a concurring decision, said the association failed to substantiate its claim that eliminating segregated swimming hours would have a discriminatory effect on the Orthodox Jewish residents of the County Place community, which is for residents 55 and older and has 376 units.

Fuentes said he wrote separately to express “skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women.” He said facial discrimination does not become lawful merely because its burdens are felt equally by members of both sexes.

“We 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 FHA. And the FHA’s prohibition on discrimination does not distinguish between discrimination on the basis of sex and discrimination on the basis of race,” Fuentes wrote.

Angela Maione Costigan of Costigan & Costigan in Philadelphia represented the homeowner’s association. She said she believed the pool schedule would be revised to give women more access to the facility in the evening. She said she was neither pleased nor displeased by the ruling.

However, Jose Roman of Powell & Roman in Old Bridge, who represents the plaintiffs, said he believed the association would be forced to abandon its sex-segregated pool schedule on remand.

Jeanne LoCicero of the ACLU of New Jersey, who also represented the plaintiffs, added that the ruling made the condominium association responsible for damages and legal fees for the plaintiffs.

“Today the ruling is a victory for gender equity and the Fair Housing Act. And the pool policy at issue was so egregious that the court ruled against it. And so now the condo association is responsible for the damage it caused our clients and for attorney fees.”

Read the decision: