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 men. 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.