921 F.3d 405
3rd Cir.2019Background
- A Country Place is a 55+ condominium in Lakewood, NJ; by 2016 ~2/3 of residents were Orthodox Jews. The community pool is funded by residents' maintenance fees.
- The Association adopted a pool schedule creating many single-sex swim hours to accommodate Orthodox religious modesty (tznius); in 2016 sex-segregated hours were greatly expanded.
- The 2016 schedule left only 25 hours of mixed swimming per week and assigned substantially more evening hours to men (e.g., essentially all evenings from 6:45 p.m. on weekdays to men).
- Marie Curto and Steve and Diana Lusardi used the pool during opposite-sex hours; they were fined and sued under the Fair Housing Act (FHA) and state law. Diana Lusardi required pool therapy after strokes.
- The District Court granted summary judgment for the Association, reasoning the schedule "applies to men and women equally." The Third Circuit reversed, holding the schedule discriminated against women under the FHA.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the sex-segregated pool schedule violates the FHA by discriminating in services/facilities | Curto/Lusardi: Schedule discriminates against women because evening/weeknight hours favorable to working people are disproportionately allotted to men | Association: Schedule treats men and women equally in aggregate; it accommodates Orthodox religious beliefs and modesty | Held: Schedule violates FHA — facial sex classification plus unequal allocation of important hours discriminates against women |
| Whether proof of malicious intent is required for an FHA violation based on explicit sex classification | Plaintiffs: Explicit sex-based policy is actionable regardless of motive | Association: No discriminatory intent; policy is neutral and accommodating religion | Held: Motive or malice not required when policy facially classifies by sex; focus is on explicit terms (per Wind Gap) |
| Whether aggregate equality of hours defeats a disparate-treatment claim | Plaintiffs: Aggregate parity is insufficient if allocation burdens one sex during important times (e.g., evenings) | Association: Roughly equal total hours for each sex shows equal treatment | Held: Aggregate parity insufficient where distribution reflects and enforces stereotypical roles and denies meaningful access to one sex |
| Whether RFRA or religious accommodation defeats the FHA claim or whether the Association can assert members' free-exercise rights | Plaintiffs: RFRA not raised; Association waived RFRA defense | Association: Schedule required to accommodate Orthodox members' religious modesty | Held: RFRA defense waived; Association lacks associational standing to assert individual members' free-exercise rights based on record evidence and organizational purpose |
Key Cases Cited
- Community Servs., Inc. v. Wind Gap Mun. Auth., 421 F.3d 170 (3d Cir. 2005) (facial classifications are actionable without proof of malice; focus on explicit terms)
- United States v. Virginia, 518 U.S. 515 (1996) (struck down sex-based exclusion; courts must reject overbroad generalizations about sexes)
- Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) (gender classifications must be free of fixed role-based notions)
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (burden-shifting framework for indirect evidence of discrimination)
- Brown v. Board of Education, 347 U.S. 483 (1954) ("separate but equal" inherently unequal)
- Community House, Inc. v. City of Boise, 490 F.3d 1041 (9th Cir. 2007) (facially discriminatory housing policies treating protected groups differently are unlawful)