3rd Circuit Finds Gender-Aggregated Swimming Pool Hours Discriminatory in Violation of the Fair Housing Act

The U.S. Court of Appeals for the Third Circuit recently reversed a district court’s order granting summary judgment in favor of a condominium association, and held that a swimming pool schedule which allotted different times to men and women was discriminatory and violated the Fair Housing Act.

In this case, the defendant, a New Jersey condominium association with a large and growing number of Orthodox Jewish residents adopted rules segregating the use of the communal pool by sex in order to accommodate the Orthodox principle of modesty.  This was accomplished by designating certain hours when only members of a single sex were permitted to use the pool.  By 2016, over two-thirds of all swimming hours were sex-segregated.  But the plaintiffs, who were residents of the condominium, wished to swim with their families beyond the limited number of hours available for integrated swimming.  After being fined by the condominium association for violating the pool policy, the plaintiffs sued in district court alleging violations of the federal Fair Housing Act and New Jersey state law.

The district court granted summary judgment to the condominium association on the Fair Housing Act claim, finding that the gender-segregated schedule applied to men and women equally, and declined to exercise supplemental jurisdiction over the remaining state law claims.

On appeal, the condominium association argued that the sex-segregated pool schedule was not discriminatory because the policy was not motivated by malice toward either sex, and emphasized that the schedule allowed for roughly equal swimming time for both men and women in the aggregate.  The Third Circuit panel disagreed, stating that prior precedent had already established that a showing of malice is not required where a plaintiff demonstrates that the challenged action involves disparate treatment through explicit facial discrimination.  Additionally, the panel noted that women with working-hour jobs had little access to the pool during the work week and that the schedule appeared to reflect particular assumptions about the roles of men and women.  Further, the panel found that the schedule was plainly unequal in its allotment of favorable swimming times to men.  In light of such circumstances, the panel held that the sex-aggregated pool schedule discriminated against women under the Fair Housing Act even though it provided roughly equal aggregate swimming time to each gender.

Therefore, the Third Circuit panel reversed and remanded the case to the district court to enter summary judgment in favor of the plaintiffs on their Fair Housing Act claim, and deferred to the district court on whether it continues to decline the exercise of supplemental jurisdiction over the remaining state law claims.