Some time ago we blogged about a lawsuit commenced by several condo owners in New Jersey against their condominium association after it instituted rules that restricted mixed-gender swimming in the association’s pool.
Approximately two-thirds of the condo residents are Orthodox Jews, whose faith prohibits men and women from bathing together. In order to accommodate the religious residents, the condominium association implemented rules that allow mixed-gender swimming only on Saturdays (which is the Jewish Sabbath and a day when the religious residents would not be using the swimming pool), and for two hours daily on the other days between 1:00 pm and 3:00 pm. For the balance of the week, time periods were allocated for separate men only and women only usage of the pool, 32.5 hours for men and 33.5 hours for women. However only 3 ½ hours were allocated for women on weeknight evenings, while 16 ½ hours were allocated for men on weeknight evenings. This detrimentally affected women who were employed during the day. In addition, the entire period from 4:00 pm onwards on Fridays was allocated to men. The condominium association tried to justify this disparity on the basis that Orthodox women would be busy on Friday afternoons preparing for the Sabbath.
The plaintiff owners claimed that the pool rules were discriminatory and in contravention of the federal Fair Housing Act and the New Jersey Law Against Discrimination. They commenced the lawsuit after they were fined by the association for swimming during the hours reserved for the opposite sex.
In January a judge ruled that the separate swim hours were not discriminatory as they applied to both sexes. However, that decision was overturned by the U.S. Court of Appeals for the Third Circuit. The Appeals Court determined that although approximately an equal number of hours were allocated to each sex, the rules discriminated against women as only 3 ½ hours were allocated for women on weeknight evenings, while 16 ½ hours were allocated for men on weeknight evenings.
It is interesting to note that the Court did not rule that the implementation of separate swimming hours for men and women for religious reasons was in itself discriminatory. While theses rules were implemented for religious reasons pertinent to Orthodox Jews, they applied to all of the residents regardless of their religious beliefs. As a result, some freedoms of the non-religious residents were curtailed in order to accommodate the religious beliefs of the majority of the residents. On the other hand, if the condominium association did not implement separate gender swimming hours, the failure to do so would have curtailed the freedom of the religious owners to enjoy the pool while still complying with their religious principles.