Marie Curto v. A Country Place Condominium Association, Inc.

Marie Curto wanted to swim with her family after

work. Steve Lusardi wanted to swim with his wife, who had

disabilities after a series of strokes and needed pool therapy to

recover. But they lived at A Country Place, and its

Condominium Association had adopted rules segregating use

4

of the communal pool by sex. By 2016 over two-thirds of all

swimming hours throughout the week were sex-segregated.

After they were fined for violating this policy, Curto and the

Lusardis sued, alleging violations of the federal Fair Housing

Act (sometimes referred to as the “FHA”), 42 U.S.C. §§ 3601

et seq., and New Jersey state law.

The District Court granted summary judgment to the

Condominium Association because, in its words, “the gendersegregated

schedule applies to men and women equally.”

Curto v. A Country Place Condominium Assoc., 2018 WL

638749, at *4 (D.N.J. 2018). We disagree. On the facts

before us, the pool schedule discriminates against women in

violation of the FHA. We need not determine whether sexsegregated

swimming hours necessarily violate the FHA, or

whether a sufficiently limited and more even-handed schedule

might be justifiable, because the schedule actually adopted by

the Condominium Association is plainly unequal in its

allotment of favorable swimming times. Thus we reverse.

I. Background

A Country Place Condominium Association, Inc. is a

“55 and over” age-restricted condominium association

located in Lakewood, New Jersey. Lakewood has a large and

growing Orthodox Jewish population, and so does A Country

Place; by 2016, when the events in this litigation took place,

approximately two-thirds of its residents were Orthodox.

One of the amenities at A Country Place is its

community pool, which reopened in 2011 after being closed

for renovations. It is maintained using funds from the $215

monthly maintenance fee paid by each of the community

residents. After the pool reopened, the Condominium

Association adopted rules for pool use creating certain hours

when only members of a single sex were allowed to swim.

5

This was done to accommodate the Orthodox principle of

tznius, or modesty, according to which it is improper for men

and women to see each other in a state of undress—including

bathing attire. This principle—according to Fagye Engleman,

the Association’s representative in this litigation—means that

the Orthodox residents cannot comfortably swim at a time

when members of the opposite sex might be present at the

pool.

Prior to 2016 the schedules provided for only a handful

of sex-segregated swimming hours throughout the week, but

as the Orthodox membership at A Country Place increased,

the Association increased the number of sex-segregated

hours. Thus in 2016 the Association’s Board of Directors

adopted a new schedule with greatly increased segregated

swimming hours:

Under this schedule, a total of 31.75 hours each week were

defined as “men’s swim,” when women were prohibited from

using the pool; 34.25 hours were defined as “women’s swim,”

when men were prohibited. Only 25 hours were open to

people of all genders. Excluding Saturday, which was left

open for mixed-gender swimming because Orthodox

6

residents would not go swimming on the Jewish Sabbath,

only 12 hours during the other six days of the week were

available for integrated swimming. Of note, a large majority

of the hours in the evening were set aside for men, including

the period from 6:45 p.m. onward every day of the week

(except Saturday) and the entire period from 4:00 p.m.

onward on Friday. As for Friday afternoons, Engleman

testified this was done because women are at home preparing

for the Sabbath during that time.

After the controversy with the plaintiffs began, the

Association adopted a modified schedule:

The only significant change was expanding the “adult

residents only” period of “ladies’ swim.” Only the 6:00 to

6:45 p.m. period on Sunday, which went from “ladies’ swim”

to “men’s swim,” was allocated to a different gender than

under the initial 2016 schedule. Thus this revised schedule

provided for 56 hours of segregated hours (32.5 hours for

men and 33.5 hours for women), along with the same 12

hours of integrated swimming Sunday through Friday.

7

Plaintiff Marie Curto owns a unit at A Country Place,1

and stated in the complaint that one of the reasons she chose

to live there was to go swimming with her family. Plaintiffs

Steve and Diana Lusardi are a married couple who also own a

unit in the residential facility. They stated in the complaint

that one reason they moved back to the residential facility

(where they had lived previously) was to use the pool

together. Diana Lusardi suffered two strokes in 2013, which

resulted in physical disabilities, and she wished to engage in

pool therapy with her husband.

On June 15, 2016, a resident at A Country Place

notified the Board that Curto had been swimming during a

men’s swim period. The next day the Board held a meeting

on the issue, at which Steve Lusardi read a statement

explaining why he wanted to use the pool with his wife and

challenging the pool schedule as discriminatory. In the

following weeks, the plaintiffs continued to use the pool in

violation of the posted schedule and were fined $50 each by

the Board. The plaintiffs engaged in much back-and-forth

with the Board about the validity of these fines, but to no

avail. They ultimately filed a complaint alleging violations of

the Fair Housing Act as well as several New Jersey state laws

regarding both discrimination and the rules for condominium

associations.

After discovery, both parties moved for summary

judgment. The District Court granted the Condominium

Association’s motion on the plaintiffs’ Fair Housing Act

1 At least she owned a unit there when this lawsuit was filed.

The same is true of the Lusardis. It appears, though this is not

contained in the record and does not affect the outcome of our

case, that some or all of the plaintiffs have subsequently

moved out of the condo facility.

8

claim and declined to exercise supplemental jurisdiction over

the state law claims that remained. The Court’s analysis of

the FHA claim ran only two paragraphs and rested on its view

that “the gender-segregated schedule applies to men and

women equally.” Curto v. A Country Place Condominium

Assoc., 2018 WL 638749, at *4 (D.N.J. 2018). This appeal

followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C.

§ 1331. 28 U.S.C. § 1291 gives us appellate jurisdiction.

We review the District Court’s grant of summary

judgment de novo. Jutrowski v. Twp. of Riverdale, 904 F.3d

280, 288 (3d Cir. 2018). Summary judgment is warranted if

the moving party establishes “that there is no genuine dispute

as to any material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). We view all facts

“in the light most favorable to the non-moving party” and

draw all reasonable inferences in that party’s favor.

Jutrowski, 904 F.3d at 288.

III. Analysis

The Fair Housing Act, 42 U.S.C. § 3604(b), makes it

an unlawful housing practice to “discriminate against any

person in the terms, conditions, or privileges of sale or rental

of a dwelling, or in the provision of services or facilities

therewith, because of race, color, religion, sex, familial status,

or national origin.” Per regulation, here 24 C.F.R.

§ 100.65(b)(4), this includes “[l]imiting the use of privileges,

services or facilities associated with a dwelling because of

race, color, religion, sex, handicap, familial status, or national

origin of an owner, tenant or a person associated with him or

her.” The parties here do not dispute that the FHA applies to

9

the Condominium Association or that the communal pool is a

“facility associated with a dwelling” within the meaning of

the statute and regulation.2

2 Although the Condominium Association’s pool use policy

was motivated by the Orthodox Jewish residents’ religious

beliefs, the Association did not mention the Religious

Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

(“RFRA”), at any point in its filings in the District Court or in

its merits brief before us. (At our request, the parties

discussed RFRA implications in supplemental memoranda.)

Thus we determine that the Association has waived any

possible RFRA defense to the plaintiffs’ FHA claim.

Even had the Association asserted a RFRA defense, it

would lack associational standing to assert the religious free

exercise rights of its Orthodox Jewish members. To have

associational standing, (1) individual members must have

standing in their own right, (2) the interest asserted must be

germane to the purpose of the organization, and (3) neither

the claim nor the relief requested must require the

participation of the individual members in the lawsuit. Hunt

v. Washington State Apple Advertising Com’n, 432 U.S. 333,

343 (1977). The first prong is easily met here, but the

Condominium Association does not have a religious purpose.

Moreover, religious beliefs are highly personal, and in a

typical RFRA case the parties asserting a burden on their

religion would provide personal testimony about their beliefs

and the nature of the burden. Here we have only the

Association’s general assertions as to the beliefs of its

Orthodox members.

10

“Where a regulation or policy facially discriminates on

the basis of the protected trait, in certain circumstances it may

constitute per se or explicit discrimination because the

protected trait by definition plays a role in the decisionmaking

process.” Community Services, Inc. v. Wind Gap

Mun. Auth., 421 F.3d 170, 177 (3d Cir. 2005) (internal

citations and quotation marks omitted). The Condominium

Association argues that its pool schedule is not discriminatory

because it was not motivated by malice toward either sex.

But in Wind Gap we expressly held that a showing of malice

is not required “where a plaintiff demonstrates that the

challenged action involves disparate treatment through

explicit facial discrimination. . . . Rather, the focus is on the

explicit terms of the discrimination.”3 Id. (internal citations

and quotation marks omitted).

Looking to the express terms of the pool policy, the

Association emphasizes that it allows for roughly equal

swimming time for both men and women in the aggregate.

But this is not enough to save the pool schedule, which

discriminates in its allotment of different times to men and

women in addition to employing sex as its criterion. Under

the most recent version of the schedule, women are able to

swim for only 3.5 hours after 5:00 p.m. on weeknights,

3 This is different from when a plaintiff relies on indirect

evidence of discrimination. In those cases, a plaintiff must

first make out a prima facie case of discrimination, which

usually means showing circumstances supporting a plausible

inference of discrimination. Then the defendant must give a

legitimate, nondiscriminatory reason for its actions, which the

plaintiff may then show was a pretext for discrimination. See

generally McDonnell Douglas Corp. v. Green, 411 U.S. 792,

802–04 (1973).

11

compared to 16.5 hours for men. The schedule also assigns to

men the entire period from 4:00 p.m. onward on Friday

afternoons. 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. Cf. United States v. Virginia, 518 U.S. 515,

533 (1996) (Fourteenth Amendment forbids sex

classifications based on “overbroad generalizations about the

different talents, capacities, or preferences” of men and

women); Mississippi University for Women v. Hogan, 458

U.S. 718, 724–25 (1982) (review of gender classifications

must be “free of fixed notions concerning the roles and

abilities” of men and women). 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.4

4 Plaintiffs argue that any schedule of sex-segregated

swimming hours would necessarily violate the FHA, and they

see the Association’s arguments as akin to the “separate but

equal” framework rejected in Brown v. Board of Education,

347 U.S. 483 (1954). We need not address that contention,

and its potentially far-reaching implications, as this specific

pool schedule is plainly discriminatory in its specifics. Thus

we also need not consider the Association’s argument that

prohibiting single-sex swimming hours altogether would

discriminate against the Orthodox Jewish residents and

thereby itself violate the FHA. Moreover, as Judge Fuentes

notes in his concurrence, the Association fails to substantiate

its claim that eliminating segregated swimming hours would

have a discriminatory effect on the Orthodox residents at A

Country Place, as we do not know how many of the Orthodox

community use the pool or how many would not use a mixed12

* * * * *

In this context we reverse and remand the case to the

District Court to enter summary judgment in favor of the

plaintiffs on their claim under the Fair Housing Act. We

leave to the Court whether it continues to decline the exercise

of supplemental jurisdiction over plaintiffs’ state law claims.

sex pool because of religious objections. See Concurring Op.

at 4–5.

FUENTES, Circuit Judge, concurring.

For decades, our jurisprudence has denounced the very

notion of “separate, but equal” policies. In Brown v. Board of

Education, the Supreme Court recognized that “the doctrine of

‘separate but equal’ has no place” because separate facilities

are “inherently unequal.”1 The Court was even more explicit

in Loving v. Virginia: “[W]e reject the notion that the mere

‘equal application’ of a statute containing racial classifications

is enough to remove the classifications from the Fourteenth

Amendment’s proscription of all invidious racial

discriminations . . . .”2

Our vehement disapproval of segregation does not

weaken when we adjudicate sex discrimination rather than

racial discrimination cases. “Separate but equal treatment on

the basis of sex is as self-contradictory as separate but equal on

the basis of race.”3 In Healey v. Southwood Psychiatric

Hospital, we explained that “[w]hen open and explicit use of

gender is employed . . . the systemic discrimination is in effect

‘admitted’ by the [defendant], and the case will turn on whether

such overt disparate treatment is for some reason justified”

under the relevant statute.4

1 347 U.S. 483, 495 (1954).

2 388 U.S. 1, 8 (1967).

3 N.L.R.B. v. Local 106, Glass Bottle Blowers Ass’n, 520 F.2d

693, 695 (6th Cir. 1975).

4 78 F.3d 128, 132 (3d Cir. 1996). Although Healey was an

employment discrimination case, we frequently rely on our

Title VII jurisprudence to guide our understanding of the

FHA’s antidiscrimination provisions. See Cmty. Servs., Inc. v.

Wind Gap Mun. Auth., 421 F.3d 170, 176 n.5 (3d Cir. 2005).

2

While the majority opinion explains that we do not

reach the issue of “whether sex-segregated swimming hours

necessarily violate the FHA,”5 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.6

We have never considered whether there may be

exceptions to the FHA’s antidiscrimination provision.7 Our

sister circuits that have considered the issue have determined

that in certain circumstances, there may be legal justifications

for facial discrimination under the FHA. The Sixth, Ninth, and

Tenth Circuits have concluded that facially discriminatory

policies may be justified if a defendant can show that the

5 Maj. Op. at 4.

6 42 U.S.C. § 3604(b) (prohibiting discrimination “because of

race, color, religion, sex, familial status, or national origin”).

7 Section 3607 creates a narrow exception by allowing

religious organizations that sell or rent housing to give

preference to members of the same religion, unless

membership in the religion itself is “restricted on account of

race, color, or national origin.” See id. § 3607(a). That

exception is inapplicable here.

3

policies benefit the protected class or respond to legitimate

safety concerns.8 The Eighth Circuit uses a different standard,

requiring defendants to demonstrate that the facially

discriminatory policy “was necessary to promote a

governmental interest commensurate with the level of scrutiny

afforded the class of people affected by the law under the equal

protection clause.”9

There are two reasons why we need not now determine

whether to adopt one of the tests put forth by our sister circuits.

First, as the majority opinion rightly concludes, in this case

there is evidence of both facial discrimination and disparate

treatment. The stark difference between men’s swimming

hours and women’s swimming hours during weekday evenings

8 Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050 (9th

Cir. 2007); Larkin v. State of Mich. Dep’t of Soc. Servs., 89

F.3d 285, 290 (6th Cir. 1996); Bangerter v. Orem City Corp.,

46 F.3d 1491, 1503–04 (10th Cir. 1995). As an example of

how analysis of gender-based facial discrimination under the

FHA might work, in Community House v. City of Boise, the

Ninth Circuit determined that a religious homeless shelter’s

policy of excluding women and families was facially

discriminatory “because it explicitly treats women and families

different from men.” Cmty. House, 490 F.3d at 1045. The

court also addressed the shelter’s suggestion that it would

create a separate shelter for women and families, casting doubt

on that justification because “there is a serious question that

sheltering women and families . . . separately from men would

benefit women and families by satisfying a required safety

need.” Id. at 1052.

9 Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91,

93 (8th Cir. 1991).

4

is fatal to the pool schedule because it perpetuates stereotypes

about the relative likelihood of men and women to be working

during those hours. The Condominium Association attempted

to justify the disparity by pointing to the deposition testimony

of Ms. Engleman, who stated that on Friday afternoons,

women are home preparing for the Shabbat holiday. The

testimony is equivocal as to whether preparation for Shabbat is

a religious mandate or a cultural practice that could be rooted

in gender stereotypes about the role of women in homemaking.

If it is the latter, of course, it cannot justify the discriminatory

treatment of women. “[G]eneralizations about ‘the way

women are,’ [and] estimates of what is appropriate for most

women, no longer justify denying opportunity to women . . .

.”10 Even if Ms. Engleman were explaining a religious

requirement, her reasoning cannot justify the disparity between

men’s hours and women’s hours on Mondays through

Thursdays.

Second, regardless of the test we adopted, the

Condominium Association’s justifications would fail.

Although the Association defends its discrimination on the

basis of the religious concerns of its Orthodox Jewish

members,11 it did not argue that its discriminatory schedule

10 United States v. Virginia, 518 U.S. 515, 550 (1996).

11 The contemporaneous evidence suggests that the

Association justified the pool schedule as the will of the

majority rather than as a necessary accommodation to

Orthodox Jewish residents. The Association informed Ms.

Curto that “[t]he vast majority of people would abolish any

mixed swimming, because that is the will of the majority.” J.A.

174. The Association also informed Mr. Lusardi that “we are

well within our rights to serve the vast majority of the

5

was justified under any recognized exception to the FHA’s

antidiscrimination provision. Specifically, it did not assert that

the association’s policies benefitted the affected protected class

(here, women) or that they responded to legitimate safety

concerns.12 It also waived any argument that its discrimination

was protected by the Religious Freedom Restoration Act. The

Association instead 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. 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.13 At the very least,

at the summary judgment stage, the Condominium Association

was required to put forward more than speculation about the

effects of integrating the swimming pool.

In sum, I join the majority decision to reverse the

decision of the District Court not only because of the pool

schedule’s disparate treatment of women, but also because it is

per se facially discriminatory in violation of the FHA.

community . . . . You are inconsiderate of the majority and

wish for minority rule. That is not our community.” J.A. 176.

12 See Cmty. House, Inc., 490 F.3d at 1050.

13 In her deposition, Ms. Engleman said that all Orthodox Jews

would oppose mixed swimming, but later admitted that some

religious laws are open to different interpretations, like laws

requiring men and women to remain separate in public spaces.

Revered and remanded.