The Country Place Condominium Association is a 55+ community located in Lakewood, New Jersey. Lakewood has a large and growing Orthodox Jewish population, and so does the association. By 2016, approximately two-thirds of its residents were Orthodox Jews. The association adopted rules segregated swim times for men and women to accommodate Jewish religious restrictions related to modesty, i.e., men and women could not swim at the same time because they were not fully clothed.
Although this involved competing discrimination issues, sex discrimination versus reasonable accommodation for religious beliefs, the association did not raise religious accommodation as a defense. As a result, the only issue before the Court of Appeals was the segregation of swim times based on gender. The court found that this was a clear case of sex discrimination and found that limiting when residents could use the swimming pool based on their gender violated the Fair Housing Act.
The Fair Housing Act, 42 U.S.C. § 3604(b), makes it an unlawful housing practice to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities therewith, because of race, color, religion, sex, familial status, or national origin.” Per regulation, here 24 C.F.R. § 100.65(b)(4), this includes “[l]imiting the use of privileges, services or facilities associated with a dwelling because of race, color, religion, sex, handicap, familial status, or national origin of an owner, tenant or a person associated with him or her.” (Curto v. Country Place (2019).)
Of additional interest, the concurring opinion noted that certain other federal circuit courts covering different parts of the country (including the Ninth Circuit) have concluded that policies which are discriminatory on their face may be justified if it can be shown that the policies benefit the protected class or respond to legitimate safety concerns.
Recommendation: Boards should consult legal counsel before adopting rules that might be deemed discriminatory.
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