PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

________________

No. 18-1212

________________

MARIE CURTO; DIANA LUSARDI; STEVE LUSARDI,

Appellants 

v. 

A COUNTRY PLACE CONDOMINIUM ASSOCIATION, 

INC.; ABC CORP. 1 TO 10; JOHN DOE 1 TO 10

 _

Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 3-16-cv-05928) 

District Judge: Honorable Brian R. Martinotti

_

Argued March 5, 2019

Before: AMBRO, BIBAS, and FUENTES, Circuit Judges

(Opinion filed: April 22, 2019) 

Lenora M. Lapidus

Sandra S. Park (Argued)
2

American Civil Liberties Union

Women’s Rights Project

125 Broad Street, 18th Floor

New York, NY 10004

Jeanne LoCicero

Liza F. Weisberg

Edward Barocas

American Civil Liberties Union of New Jersey Foundation

89 Market Street

P.O. Box 32159

Newark, NJ 07102

Daniel Mach

Heather L. Weaver

American Civil Liberties Union 

915 15th Street, N.W., 6th Floor

Washington, DE 20005

Jose D. Roman

Powell & Roman

131 White Oak Lane

Old Bridge, NJ 08857

Counsel for Appellants

Angela Maione Costigan (Argued)

Costigan & Costigan, LLC

1222 Spruce Street

Philadelphia, PA 19107

Counsel for Appellee
3 

Lila Miller

Sasha M. Samberg-Champion

Relman Dane & Colfax PLLC

1225 19th Street, N.W., Suite 600

Washington, DE 20036

Amicus Appellant

National Fair Housing Alliance

Kevin T. Snider

Pacific Justice Institute

9851 Horn Road, Suite 115

Sacramento, CA 95827

David J. Hallstrom

3C01 Lansdowne Terrace

London, WC1N 1AS

United Kingdom

Amicus Appellee

Pacific Justice Institute

_

OPINION OF THE COURT

_

AMBRO, Circuit Judge, 

Marie Curto wanted to swim with her family after 

work. Steve Lusardi wanted to swim with his wife, who had 

disabilities after a series of strokes and needed pool therapy to 

recover. But they lived at A Country Place, and its 

Condominium Association had adopted rules segregating use 
4

of the communal pool by sex. By 2016 over two-thirds of all 

swimming hours throughout the week were sex-segregated. 

After they were fined for violating this policy, Curto and the 

Lusardis sued, alleging violations of the federal Fair Housing 

Act (sometimes referred to as the “FHA”), 42 U.S.C. §§ 3601 

et seq., and New Jersey state law. 

The District Court granted summary judgment to the 

Condominium Association because, in its words, “the gendersegregated schedule applies to men and women equally.” 

Curto v. A Country Place Condominium Assoc., 2018 WL 

638749, at *4 (D.N.J. 2018). We disagree. On the facts 

before us, the pool schedule discriminates against women in 

violation of the FHA. We need not determine whether sexsegregated swimming hours necessarily violate the FHA, or 

whether a sufficiently limited and more even-handed schedule 

might be justifiable, because the schedule actually adopted by 

the Condominium Association is plainly unequal in its 

allotment of favorable swimming times. Thus we reverse.

I. Background

A Country Place Condominium Association, Inc. is a 

“55 and over” age-restricted condominium association 

located in Lakewood, New Jersey. Lakewood has a large and 

growing Orthodox Jewish population, and so does A Country 

Place; by 2016, when the events in this litigation took place, 

approximately two-thirds of its residents were Orthodox.

One of the amenities at A Country Place is its 

community pool, which reopened in 2011 after being closed 

for renovations. It is maintained using funds from the $215 

monthly maintenance fee paid by each of the community 

residents. After the pool reopened, the Condominium 

Association adopted rules for pool use creating certain hours 

when only members of a single sex were allowed to swim. 
5

This was done to accommodate the Orthodox principle of 

tznius, or modesty, according to which it is improper for men 

and women to see each other in a state of undress—including 

bathing attire. This principle—according to Fagye Engleman,

the Association’s representative in this litigation—means that 

the Orthodox residents cannot comfortably swim at a time 

when members of the opposite sex might be present at the 

pool. 

Prior to 2016 the schedules provided for only a handful 

of sex-segregated swimming hours throughout the week, but 

as the Orthodox membership at A Country Place increased, 

the Association increased the number of sex-segregated 

hours. Thus in 2016 the Association’s Board of Directors

adopted a new schedule with greatly increased segregated 

swimming hours:

Under this schedule, a total of 31.75 hours each week were 

defined as “men’s swim,” when women were prohibited from 

using the pool; 34.25 hours were defined as “women’s swim,” 

when men were prohibited. Only 25 hours were open to 

people of all genders. Excluding Saturday, which was left 

open for mixed-gender swimming because Orthodox 
6

residents would not go swimming on the Jewish Sabbath, 

only 12 hours during the other six days of the week were 

available for integrated swimming. Of note, a large majority 

of the hours in the evening were set aside for men, including 

the period from 6:45 p.m. onward every day of the week 

(except Saturday) and the entire period from 4:00 p.m. 

onward on Friday. As for Friday afternoons, Engleman 

testified this was done because women are at home preparing 

for the Sabbath during that time. 

After the controversy with the plaintiffs began, the 

Association adopted a modified schedule:

The only significant change was expanding the “adult 

residents only” period of “ladies’ swim.” Only the 6:00 to 

6:45 p.m. period on Sunday, which went from “ladies’ swim”

to “men’s swim,” was allocated to a different gender than 

under the initial 2016 schedule. Thus this revised schedule 

provided for 56 hours of segregated hours (32.5 hours for 

men and 33.5 hours for women), along with the same 12 

hours of integrated swimming Sunday through Friday.
7

Plaintiff Marie Curto owns a unit at A Country Place,

1

and stated in the complaint that one of the reasons she chose 

to live there was to go swimming with her family. Plaintiffs 

Steve and Diana Lusardi are a married couple who also own a 

unit in the residential facility. They stated in the complaint 

that one reason they moved back to the residential facility

(where they had lived previously) was to use the pool 

together. Diana Lusardi suffered two strokes in 2013, which 

resulted in physical disabilities, and she wished to engage in 

pool therapy with her husband.

On June 15, 2016, a resident at A Country Place 

notified the Board that Curto had been swimming during a 

men’s swim period. The next day the Board held a meeting 

on the issue, at which Steve Lusardi read a statement 

explaining why he wanted to use the pool with his wife and 

challenging the pool schedule as discriminatory. In the 

following weeks, the plaintiffs continued to use the pool in 

violation of the posted schedule and were fined $50 each by 

the Board. The plaintiffs engaged in much back-and-forth 

with the Board about the validity of these fines, but to no 

avail. They ultimately filed a complaint alleging violations of 

the Fair Housing Act as well as several New Jersey state laws 

regarding both discrimination and the rules for condominium 

associations. 

After discovery, both parties moved for summary 

judgment. The District Court granted the Condominium 

Association’s motion on the plaintiffs’ Fair Housing Act 

 1 At least she owned a unit there when this lawsuit was filed. 

The same is true of the Lusardis. It appears, though this is not 

contained in the record and does not affect the outcome of our

case, that some or all of the plaintiffs have subsequently 

moved out of the condo facility.
8

claim and declined to exercise supplemental jurisdiction over 

the state law claims that remained. The Court’s analysis of 

the FHA claim ran only two paragraphs and rested on its view 

that “the gender-segregated schedule applies to men and 

women equally.” Curto v. A Country Place Condominium 

Assoc., 2018 WL 638749, at *4 (D.N.J. 2018). This appeal 

followed.

II. Jurisdiction and Standard of Review

The District Court had jurisdiction under 28 U.S.C. 

§ 1331. 28 U.S.C. § 1291 gives us appellate jurisdiction.

We review the District Court’s grant of summary 

judgment de novo. Jutrowski v. Twp. of Riverdale, 904 F.3d 

280, 288 (3d Cir. 2018). Summary judgment is warranted if 

the moving party establishes “that there is no genuine dispute 

as to any material fact and the movant is entitled to judgment 

as a matter of law.” Fed. R. Civ. P. 56(a). We view all facts 

“in the light most favorable to the non-moving party” and 

draw all reasonable inferences in that party’s favor. 

Jutrowski, 904 F.3d at 288.

III. Analysis

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.” The parties here do not dispute that the FHA applies to 
9

the Condominium Association or that the communal pool is a 

“facility associated with a dwelling” within the meaning of 

the statute and regulation.2

 2 Although the Condominium Association’s pool use policy 

was motivated by the Orthodox Jewish residents’ religious 

beliefs, the Association did not mention the Religious 

Freedom Restoration Act, 42 U.S.C. § 2000bb et seq.

(“RFRA”), at any point in its filings in the District Court or in 

its merits brief before us. (At our request, the parties 

discussed RFRA implications in supplemental memoranda.) 

Thus we determine that the Association has waived any 

possible RFRA defense to the plaintiffs’ FHA claim. 

Even had the Association asserted a RFRA defense, it 

would lack associational standing to assert the religious free 

exercise rights of its Orthodox Jewish members. To have 

associational standing, (1) individual members must have 

standing in their own right, (2) the interest asserted must be 

germane to the purpose of the organization, and (3) neither 

the claim nor the relief requested must require the 

participation of the individual members in the lawsuit. Hunt 

v. Washington State Apple Advertising Com’n, 432 U.S. 333, 

343 (1977). The first prong is easily met here, but the 

Condominium Association does not have a religious purpose. 

Moreover, religious beliefs are highly personal, and in a 

typical RFRA case the parties asserting a burden on their 

religion would provide personal testimony about their beliefs 

and the nature of the burden. Here we have only the 

Association’s general assertions as to the beliefs of its 

Orthodox members.
10

“Where a regulation or policy facially discriminates on 

the basis of the protected trait, in certain circumstances it may 

constitute per se or explicit discrimination because the 

protected trait by definition plays a role in the decisionmaking process.” Community Services, Inc. v. Wind Gap 

Mun. Auth., 421 F.3d 170, 177 (3d Cir. 2005) (internal 

citations and quotation marks omitted). The Condominium 

Association argues that its pool schedule is not discriminatory

because it was not motivated by malice toward either sex. 

But in Wind Gap we expressly held that a showing of malice 

is not required “where a plaintiff demonstrates that the 

challenged action involves disparate treatment through 

explicit facial discrimination. . . . Rather, the focus is on the 

explicit terms of the discrimination.”3

 Id. (internal citations 

and quotation marks omitted).

Looking to the express terms of the pool policy, the 

Association emphasizes that it allows for roughly equal 

swimming time for both men and women in the aggregate. 

But this is not enough to save the pool schedule, which 

discriminates in its allotment of different times to men and 

women in addition to employing sex as its criterion. Under

the most recent version of the schedule, women are able to 

swim for only 3.5 hours after 5:00 p.m. on weeknights, 

 3 This is different from when a plaintiff relies on indirect 

evidence of discrimination. In those cases, a plaintiff must 

first make out a prima facie case of discrimination, which 

usually means showing circumstances supporting a plausible 

inference of discrimination. Then the defendant must give a 

legitimate, nondiscriminatory reason for its actions, which the 

plaintiff may then show was a pretext for discrimination. See 

generally McDonnell Douglas Corp. v. Green, 411 U.S. 792, 

802–04 (1973).
11

compared to 16.5 hours for men. The schedule also assigns to 

men the entire period from 4:00 p.m. onward on Friday 

afternoons. Women with regular-hour jobs thus have little 

access to the pool during the work week, and the schedule 

appears to reflect particular assumptions about the roles of 

men and women. Cf. United States v. Virginia, 518 U.S. 515, 

533 (1996) (Fourteenth Amendment forbids sex 

classifications based on “overbroad generalizations about the 

different talents, capacities, or preferences” of men and 

women); Mississippi University for Women v. Hogan, 458 

U.S. 718, 724–25 (1982) (review of gender classifications 

must be “free of fixed notions concerning the roles and 

abilities” of men and women). In light of these specific 

inequitable features, the schedule discriminates against 

women under the FHA even though it provides roughly equal 

aggregate swimming time to each gender.

4

 4 Plaintiffs argue that any schedule of sex-segregated 

swimming hours would necessarily violate the FHA, and they 

see the Association’s arguments as akin to the “separate but 

equal” framework rejected in Brown v. Board of Education, 

347 U.S. 483 (1954). We need not address that contention, 

and its potentially far-reaching implications, as this specific 

pool schedule is plainly discriminatory in its specifics. Thus 

we also need not consider the Association’s argument that 

prohibiting single-sex swimming hours altogether would 

discriminate against the Orthodox Jewish residents and 

thereby itself violate the FHA. Moreover, as Judge Fuentes 

notes in his concurrence, the Association fails to substantiate 

its claim that eliminating segregated swimming hours would 

have a discriminatory effect on the Orthodox residents at A 

Country Place, as we do not know how many of the Orthodox 

community use the pool or how many would not use a mixed-
12

* * * * *

In this context we reverse and remand the case to the 

District Court to enter summary judgment in favor of the 

plaintiffs on their claim under the Fair Housing Act. We 

leave to the Court whether it continues to decline the exercise 

of supplemental jurisdiction over plaintiffs’ state law claims.

 

sex pool because of religious objections. See Concurring Op. 

at 4–5.
FUENTES, Circuit Judge, concurring. 

For decades, our jurisprudence has denounced the very 

notion of “separate, but equal” policies. In Brown v. Board of 

Education, the Supreme Court recognized that “the doctrine of 

‘separate but equal’ has no place” because separate facilities 

are “inherently unequal.”1

 The Court was even more explicit 

in Loving v. Virginia: “[W]e reject the notion that the mere 

‘equal application’ of a statute containing racial classifications 

is enough to remove the classifications from the Fourteenth 

Amendment’s proscription of all invidious racial 

discriminations . . . .”2

Our vehement disapproval of segregation does not 

weaken when we adjudicate sex discrimination rather than 

racial discrimination cases. “Separate but equal treatment on 

the basis of sex is as self-contradictory as separate but equal on 

the basis of race.”3

 In Healey v. Southwood Psychiatric 

Hospital, we explained that “[w]hen open and explicit use of 

gender is employed . . . the systemic discrimination is in effect 

‘admitted’ by the [defendant], and the case will turn on whether 

such overt disparate treatment is for some reason justified”

under the relevant statute.4

 1 347 U.S. 483, 495 (1954).

2 388 U.S. 1, 8 (1967).

3 N.L.R.B. v. Local 106, Glass Bottle Blowers Ass’n, 520 F.2d 

693, 695 (6th Cir. 1975).

4 78 F.3d 128, 132 (3d Cir. 1996). Although Healey was an 

employment discrimination case, we frequently rely on our 

Title VII jurisprudence to guide our understanding of the 

FHA’s antidiscrimination provisions. See Cmty. Servs., Inc. v. 

Wind Gap Mun. Auth., 421 F.3d 170, 176 n.5 (3d Cir. 2005).
2

While the majority opinion explains that we do not 

reach the issue of “whether sex-segregated swimming hours 

necessarily violate the FHA,”5 I write separately to express my 

skepticism that the pool’s sex-segregated schedule could be 

saved by a more even allocation of evening hours between men 

and women. Our jurisprudence makes clear that facial 

discrimination does not become lawful merely because its 

burdens are felt by members of both sexes. We would have no 

problem concluding, for example, that a pool schedule that 

allocates two-thirds of its hours to swimming segregated by 

race and one-third of its hours to “Integrated Swimming” 

would be intolerable under the FHA. And the FHA’s 

prohibition on discrimination does not distinguish between 

discrimination on the basis of sex and discrimination on the 

basis of race.6

We have never considered whether there may be 

exceptions to the FHA’s antidiscrimination provision.7

 Our 

sister circuits that have considered the issue have determined 

that in certain circumstances, there may be legal justifications 

for facial discrimination under the FHA. The Sixth, Ninth, and 

Tenth Circuits have concluded that facially discriminatory 

policies may be justified if a defendant can show that the 

 5 Maj. Op. at 4. 6 42 U.S.C. § 3604(b) (prohibiting discrimination “because of 

race, color, religion, sex, familial status, or national origin”).

7 Section 3607 creates a narrow exception by allowing 

religious organizations that sell or rent housing to give 

preference to members of the same religion, unless 

membership in the religion itself is “restricted on account of 

race, color, or national origin.” See id. § 3607(a). That 

exception is inapplicable here.
3

policies benefit the protected class or respond to legitimate 

safety concerns.8 The Eighth Circuit uses a different standard, 

requiring defendants to demonstrate that the facially 

discriminatory policy “was necessary to promote a 

governmental interest commensurate with the level of scrutiny 

afforded the class of people affected by the law under the equal 

protection clause.”9

 

There are two reasons why we need not now determine 

whether to adopt one of the tests put forth by our sister circuits. 

First, as the majority opinion rightly concludes, in this case 

there is evidence of both facial discrimination and disparate 

treatment. The stark difference between men’s swimming 

hours and women’s swimming hours during weekday evenings 

 8 Cmty. House, Inc. v. City of Boise, 490 F.3d 1041, 1050 (9th 

Cir. 2007); Larkin v. State of Mich. Dep’t of Soc. Servs., 89 

F.3d 285, 290 (6th Cir. 1996); Bangerter v. Orem City Corp., 

46 F.3d 1491, 1503–04 (10th Cir. 1995). As an example of 

how analysis of gender-based facial discrimination under the 

FHA might work, in Community House v. City of Boise, the 

Ninth Circuit determined that a religious homeless shelter’s 

policy of excluding women and families was facially 

discriminatory “because it explicitly treats women and families 

different from men.” Cmty. House, 490 F.3d at 1045. The 

court also addressed the shelter’s suggestion that it would 

create a separate shelter for women and families, casting doubt 

on that justification because “there is a serious question that 

sheltering women and families . . . separately from men would 

benefit women and families by satisfying a required safety 

need.” Id. at 1052.

9 Familystyle of St. Paul, Inc. v. City of St. Paul, 923 F.2d 91, 

93 (8th Cir. 1991).
4

is fatal to the pool schedule because it perpetuates stereotypes 

about the relative likelihood of men and women to be working 

during those hours. The Condominium Association attempted 

to justify the disparity by pointing to the deposition testimony 

of Ms. Engleman, who stated that on Friday afternoons, 

women are home preparing for the Shabbat holiday. The 

testimony is equivocal as to whether preparation for Shabbat is 

a religious mandate or a cultural practice that could be rooted 

in gender stereotypes about the role of women in homemaking. 

If it is the latter, of course, it cannot justify the discriminatory 

treatment of women. “[G]eneralizations about ‘the way 

women are,’ [and] estimates of what is appropriate for most 

women, no longer justify denying opportunity to women . . . 

.”10 Even if Ms. Engleman were explaining a religious 

requirement, her reasoning cannot justify the disparity between 

men’s hours and women’s hours on Mondays through 

Thursdays.

Second, regardless of the test we adopted, the 

Condominium Association’s justifications would fail. 

Although the Association defends its discrimination on the 

basis of the religious concerns of its Orthodox Jewish 

members,11 it did not argue that its discriminatory schedule 

 10 United States v. Virginia, 518 U.S. 515, 550 (1996). 

11 The contemporaneous evidence suggests that the 

Association justified the pool schedule as the will of the 

majority rather than as a necessary accommodation to 

Orthodox Jewish residents. The Association informed Ms. 

Curto that “[t]he vast majority of people would abolish any 

mixed swimming, because that is the will of the majority.” J.A. 

174. The Association also informed Mr. Lusardi that “we are 

well within our rights to serve the vast majority of the 
5

was justified under any recognized exception to the FHA’s 

antidiscrimination provision. Specifically, it did not assert that 

the association’s policies benefitted the affected protected class 

(here, women) or that they responded to legitimate safety 

concerns.12 It also waived any argument that its discrimination 

was protected by the Religious Freedom Restoration Act. The 

Association instead argued that if it did not discriminate on the 

basis of sex, it would be discriminating against its Orthodox 

Jewish population because they would be unable to use the 

swimming pool due to religious modesty laws. But there is no 

evidence in the record of the number of Orthodox Jewish 

residents who use the pool, and no evidence of the number of 

Orthodox Jewish pool users who would be unable to use a 

mixed-sex pool due to religious objections.13 At the very least, 

at the summary judgment stage, the Condominium Association 

was required to put forward more than speculation about the 

effects of integrating the swimming pool.

In sum, I join the majority decision to reverse the 

decision of the District Court not only because of the pool 

schedule’s disparate treatment of women, but also because it is 

per se facially discriminatory in violation of the FHA.

 

community . . . . You are inconsiderate of the majority and 

wish for minority rule. That is not our community.” J.A. 176.

12 See Cmty. House, Inc., 490 F.3d at 1050.

13 In her deposition, Ms. Engleman said that all Orthodox Jews 

would oppose mixed swimming, but later admitted that some 

religious laws are open to different interpretations, like laws 

requiring men and women to remain separate in public spaces.