In
Curto v. A Country Place Condominium Association, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals held that a condominium's mostly sex-segregated swimming hours, adopted in deference to a large number of Orthodox Jewish residents, violates the federal Fair Housing Act. Judge Ambro's opinion focused on the fact that the swim schedule discriminates against women. Weekday evening times were mostly allocated to men. He concluded:
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.
He concluded that defendant had waived any RFRA defense, and even if it had not, the condominium association lacks standing to assert the defense. Judge Fuentes' concurring opinion added:
I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt 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.
ACLU issued a
press release announcing the decision.
