Curto v. A Country Place Condominium

United States Court of Appeals for the Third Circuit · Property

PropertyFair Housing ActSex discriminationCommon-interest communitiesFHA42 U.S.C. § 3604(b)24 C.F.R. § 100.65(b)(4)facial discrimination

Facts

A Country Place Condominium Association operated a community pool funded by residents' monthly maintenance fees. In 2016, the Association adopted a pool schedule that assigned 32.5 hours to men, 33.5 hours to women, and only 12 integrated hours from Sunday through Friday, with most evening hours and all Friday time after 4:00 p.m. reserved for men. Marie Curto wanted to swim with her family after work, and Steve and Diana Lusardi wanted to use the pool together for Diana's pool therapy after her strokes. After the plaintiffs used the pool during prohibited times and challenged the policy, the Association fined them $50 each.

Issue

Whether a condominium association's sex-segregated pool schedule violates the Fair Housing Act when it explicitly classifies access by sex and gives women substantially less favorable access to desirable swimming times, even if the total aggregate hours allotted to men and women are roughly equal.

Rule

Under 42 U.S.C. § 3604(b) and 24 C.F.R. § 100.65(b)(4), a housing-related facility policy that facially discriminates on the basis of sex is unlawful where its explicit terms limit use of the facility because of sex. When the discrimination is explicit on the face of the policy, the plaintiff need not show malice; the focus is on the policy's express terms, including whether it allocates materially unequal access to favorable times or conditions.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

At a condominium complex in Phoenix, the homeowners association operates a gym funded by monthly assessments. Its posted schedule reserves all weekday hours after 6:00 p.m. for men, gives women only weekday midday access, and leaves a few mixed hours on Saturday morning.

A female unit owner who works 9 to 5 sues under the Fair Housing Act, arguing the gym policy is unlawful sex discrimination. What is the strongest basis for her claim?

Explanation. Under the majority opinion, the FHA covers services or facilities associated with a dwelling, and a communal amenity funded and provided by a housing association falls within that principle. When a policy explicitly uses sex to determine access, it is facially discriminatory, so the focus is on the policy's terms rather than proof of malice. The court also stressed that aggregate hour totals do not cure a schedule that allocates materially better evening or otherwise favorable times to one sex.