## Facts

- A Country Place Condominium Association operated a communal outdoor pool funded through residents’ monthly fees.
- The community was predominantly Orthodox Jewish by 2016, and some residents requested sex-segregated swimming hours based on religious norms against mixed-gender swimming.
- Beginning in 2011, the Association adopted sex-segregated pool hours; by 2016, more than two-thirds of weekly pool hours were sex-segregated.
- Although the Association allocated roughly similar total hours to men and women, it allocated more desirable times (notably weekday evenings and substantial Sunday time) to men.
- Marie Curto was fined after swimming with her family during hours reserved for one sex.
- Steve and Diana Lusardi were fined after using the pool together during sex-segregated hours; Diana Lusardi sought pool therapy after strokes and wanted to swim with her spouse for assistance.
- Plaintiffs alleged the schedule imposed unequal access to a housing-related facility and disproportionately burdened women who worked standard weekday hours.

## Issues

1. Whether a condominium association’s sex-segregated pool schedule constitutes discrimination “because of sex” in the “terms, conditions, or privileges” of housing, or related services/facilities, under 42 U.S.C. § 3604(b).
2. Whether allocating men a substantially larger share of desirable swimming times can violate the FHA even if total hours for each sex appear roughly equal.
3. Whether a religiously motivated accommodation may be implemented in a way that imposes unequal burdens on third parties protected by the FHA.

## Decision

- The Third Circuit reversed the district court’s grant of summary judgment to the Association and remanded.
- The court held the challenged schedule violated the FHA on the record presented because it discriminated against women in access to favorable pool hours.
- The court treated the claim as disparate treatment because the schedule facially classified residents by sex.
- The court declined to decide whether sex-segregated swimming hours are always unlawful; it held only that this schedule was unlawful due to its unequal allocation of desirable times.

## Legal Principles

- A housing provider violates 42 U.S.C. § 3604(b) by denying or limiting access to housing-related services or facilities “because of sex,” including through facially sex-based rules governing common amenities.
- In evaluating discrimination in access to amenities, courts may consider not only nominal parity (total hours) but also whether one group receives a materially better share of desirable access (e.g., evenings and weekends).
- A facially sex-classified policy supporting differential access to an amenity is analyzed as disparate treatment, and unequal allocation of favorable benefits may constitute unlawful discrimination.
- Religious motivations do not permit structuring an accommodation that shifts the cost of the accommodation onto protected third parties through unequal access to housing-related benefits.

## Conclusion

The Third Circuit held that a condominium association’s sex-segregated pool schedule violated the Fair Housing Act where it allotted men a significantly larger share of the most desirable swimming times, thereby providing women unequal access to a housing-related facility.


Curto v. A Country Place Condo. Ass'n, 921 F.3d 405 (3d Cir. 2019)