Sometimes, community associations tries to accommodate
religious preferences and ends up discriminating on another basis. That is what
happened in Curto v A Country Place
Condominium Association, Inc., according to the U.S. Court of Appeals for
the Third Circuit in a New Jersey condominium case handed down yesterday.
In this case, the condominium had a large Orthodox Jewish
population whose religious practices prohibited men and women from swimming together
in the condominium pool. The association, wishing to find a way for both men
and women to use the pool, came up with a schedule that provided certain hours
for men and women only swim, and certain hours for men and women to swim
together. A total of 31.75 hours were set aside for men’s swim, 34.25 for women
to swim, and 25 hours were open to swimmers of both sexes. Most of the women’s swim time was during the
daytime hours, with the majority of evening hours from 6:45 p.m. set aside for
So, what was the problem? While trying to accommodate the
Orthodox Jewish swimming separation and modesty requirements, the association
bought into gender stereotypes about male and female activities and schedules.
They assumed that women were home and free during the day and could swim then,
and that men who worked during the day needed the evening hours to swim. It is
interesting as well to note that the condominium was a 55 and over community,
so one might presume that many of the residents would be retired and able to
swim throughout the day if they wished.
Steve and Diana Lusardi were a married couple who lived in
the condominium and who needed to use the pool together because of the wife’s
disability. Marie Curto, another condominium unit owner, worked during the day
and was not able to swim during the women’s designated swimming times. The Lusardis and Curto used the pool in
violation of the designated swim schedule for their sex and were fined $50.00
for each day that they did so. They brought suit against the condominium
alleging discrimination under both the federal Fair Housing Act and New Jersey
state law. The New Jersey District Court found that the association’s swim
policies were gender neutral, in that they applied to men and women equally and
entered summary judgment in favor of the association. On appeal, the U.S. Court
of Appeals found that the swim schedule was plainly unequal in its allotment of
swim hours and reversed. Importantly, the Court noted that it did not matter
that the association’s challenged policy was not motivated by malice towards
either sex. What matters was that men
and women were treated differently in a way that effectively hurt women and
The Fair Housing climate can be tricky to navigate, as seen
in this case. Community associations frequently struggle with accommodating
changing populations and increasing diversity in ways that are respectful but
fair. The take away from this case is not that associations should stop trying
to do this, but instead that careful consideration has to be given to all
policies and rules to make sure that protecting the rights of one group does
not hurt the rights of another.
Please contact one of Black, Slaughter & Black, P.A.’s community association attorneys in our Charlotte, Greensboro, Triangle or Coastal offices to discuss Fair Housing or other community association related questions.
Author: Harmony Taylor
Articles have been Reprinted with permission from Black, Slaughter, Black.
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