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By Jennifer L. Alexander, Esq. May 2, 2019 Posted in Landlord/Tenant Law

Griffin Alexander, P.C. watches and anticipates recent trends, legislation and lawsuits governing community association and landlord/tenant law. One recent trend in community living is association concern conflicting fair housing laws.

A recent case has been decided by the United States Court of Appeals for the Third Circuit, which discusses discrimination. This case is Curto v. A Country Place Condo. Ass'n, No. 18-1212, 2019 U.S. App. LEXIS 11710, (3d Cir. Apr. 22, 2019).

The association, A Country Place Condominium Association, created a policy of pool regulations that segregated time for pool use by gender. This regulation was made to accommodate the Orthodox Jewish population of the Association, which was greater than two-thirds of the Community. The Association was attempting to accommodate the protected class of religion, but, in doing so, segregated the time slots for pool use by gender. 

Steve Lusardi, and his wife, Marie Curto, were residents of the Association. They wanted to swim together during segregated pool hours. Ms. Curto has a disability and needs pool therapy to recover. Ms. Curto and Mr. Lusardi received fines for swimming together during segregated pool time. After disputing the fines, Ms. Curto brought forth litigation, claiming that the Association violated the Fair Housing Act and New Jersey Law Against Discrimination.

The policy provided almost equal time slots for men and women. The District Court decided that the times were even for men and women, and therefore, were not discriminatory. However, on appeal, the Third Circuit reversed this decision, setting forth two reasons for the reversal. First, the specific times allocated, although almost equal in total time per week, were not equal for men and women that had “regular-hour jobs,” meaning jobs ending around 5:00p.m. Swim times for after-work hours were predominately provided to men. As an example, men were able to swim after 5:00 p.m. for a total of 16.5 hours on weeknights, while women were able to swim for only 3.5 hours after 5:00 p.m. Second, the Court noted that, in segregating the swim times, the Association used gender as a criteria. Using gender as a criteria for the creation of an Association policy is discrimination against the protected class.

The court did not discuss whether the Association had any option to save the policy by making it less discriminatory. A concurrence provided by Judge Fuentes, further discusses the inability to save the landlord’s policy of segregated swim times.  The concurrence notably views this segregated pool use policy as a typical “separate, but equal” policy, which is self-contradictory and discriminatory in nature.

Griffin Alexander, P.C. will be watching further developments with this matter.


The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances.  Each legal matter is unique, and prior results do not guarantee a similar outcome.


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