Religion and the Law

Sex-Segregated Swimming Hours at Condo Violate Fair Housing Law

So holds the Third Circuit, though in a narrow opinion.

|The Volokh Conspiracy |

From Curto v. A Counry Place Condo. Ass'n, decided Monday:

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, 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.

The majority doesn't opine on whether a more balanced allocation of women-only and men-only would be permissible, but Judge Fuentes's concurrence would have taken a broader position:

While the majority opinion explains that we do not reach the issue of "whether sex-segregated swimming hours necessarily violate the FHA," 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….

The concurrence noted that

[Some circuit courts] 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 policies benefit the protected class or respond to legitimate safety concerns. 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."

But it concluded that the court needn't confront the issue, in part because there in any event wasn't enough of a justification for the discrimination. And he noted in particular that the policy couldn't be justified as an accommodation for some residents' religious preferences:

Although the Association defends its discrimination on the basis of the religious concerns of its Orthodox Jewish members, it did not argue that its discriminatory schedule was justified under any recognized exception to the FHA's antidiscrimination provision…. 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. 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.

The majority agreed:

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 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. 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.

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  1. We are inching nearer the point where segregated bathrooms and showers constitutes gender discrimination.

    The parade of horribles presented by opponents of the ERA and scoffed at as rediculous by proponents at the time is being enacted into law, item by item, without any textual change to the constitution whatsoever.

    Are the judges homophobic? Why their invidious, irrational, bigoted, hateful, animosity-based aversion to swimming equality and equal protection for Same Sex Swimmers?

    1. There it is…. The stupidest thing I’ve read all day.

      1. Tomorrow is another day!

  2. At the same time, not asserting the RFRA, let alone having individual condominium owners intervene and assert their positions, was an absurd act of legal negligence on the part of the condominium association.

    1. This opinion deals with the Condo Association’s motion for summary judgment. Presumably now, having lost that motion, they will present additional evidence, and perhaps it will be possible for OJ residents of the complex to intervene. (Not sure of the relevant procedural rules on that last point.)

  3. Ok. I see that the majority’s opinion was limited to the hours, which generally had women only in the pool in the day, men only in the evening, and mixed swimming relegated to Saturday and a few hours around lunch, so that women who worked normally hours generally didn’t have any access.

    If the issue is limited to the hours, and not the existence of same-gender bathing per se, it becomes a more reasonable case.

    Nonetheless, the condo association was foolish not to have brought in intervenors asserting RFRA rights.

  4. Interesting because I used to live in a housing complex that had a HOA pool. It had “male swim” and “female swim” hours along with co-ed time. The HOA was run by a bunch of old women who claimed that having men around when they were in their swimsuits was “intimidating” and kept women from enjoying the pool because of “self esteem issues”. The “female swim” hours were about twice as long as the “male swim” hours but were mostly during the day and early evening. Hence, there was little complaining from men because they got the mid to late evening. The biggest complaint was from working women who couldn’t use the pool. The older women on the Board could have cared less about their fellow gender making true the old saying “the biggest obstacle to women’s empowerment is other women”.

    When it came time to approve the annual pool regulations they would always hold the meeting in the middle of the day so that those working women couldn’t come to complain. Also, the men on the Board must have known what was good for them because they were notably absent from that meeting.

    Unescorted children under 21 were also prohibited which irked some parents because they had to buy babysitters an annual guest pass which was something like $500.

    What finally killed the pool though wasn’t the fact the Board was treating it as their own private club, but insurance. The State passed some mandatory coverage laws which included putting up a big fence, removing diving boards, and putting in ADA equipment. The cost was too high so the pool was closed and eventually backfilled (because it was an insurance liability to have an empty pool which is really just a big hole in the ground).

    Government is as good at granting equal access is it is in insuring the people just have no access to nice things.

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