Sex-segregated pool schedule ruled unlawful after married couple who wanted to swim together fined

Andrew Ford and Stacey Barchenger

NEPTUNE, N.J. – A federal appeals court ruled Monday that a condominium's gender-segregated pool time policy discriminated against women at the predominantly Orthodox Jewish Lakewood community.

The U.S. Court of Appeals for the Third Circuit found in favor of a trio of owners at A Country Place who sued after they were each fined $50 by their condominium association for using the pool when the association's rules said they could not. 

The rules established separate swimming times for men and women, a policy in deference to the modesty principles held by Orthodox Jewish residents, who made up two-thirds of the association's residents at the time of the 2016 lawsuit.

Diana and Steve Lusardi and Marie Curto argued in their lawsuit that the association's policy violated a federal law that prohibits housing discrimination based on a person's sex.

More: Sexes separated at Lakewood pool

The judges found that "inequitable features" of the association's schedule made it unlawful – women were allowed 3.5 hours of pool time after 5 p.m. on weeknights compared to 16.5 hours for men.

While the issue of sex-segregated swimming has sparked controversy elsewhere, including in public pools near Hasidic enclaves in Brooklyn, the judges stopped short of ruling that any sex-segregated swimming hours would violate the law.

But one judge wrote a concurring opinion slamming the thought of "separate, but equal" policies, expressing a "vehement disapproval of segregation..."

“We’re very happy that the court saw the case our way, that it was discriminatory based on gender," said Jose D. Roman, an attorney at Powell & Roman LLC in Old Bridge who represented Curto and the Lusardis.

More: Lakewood condo owners sue over single-sex pool

The ACLU, which joined in the case on behalf of the residents, issued a statement praising the ruling. 

“Today’s ruling is a victory for gender equality," Sandra Park, senior staff attorney for the ACLU's Women’s Right Project, said in the statement. 

A swim led to a 2½ year legal battle.

The Lusardis chose to buy their home in the 55-and-over community so they could use the pool "as husband and wife," according to their lawsuit. Diana Lusardi had two strokes and the couple intended to use "pool therapy" as rehabilitation, their lawsuit claimed.

After they used the pool during segregated hours, defying the association's rules, they were fined. They were joined by Curto in filing their legal challenge in September 2016. 

Their attorney, Roman, said his clients were happy with the court’s decision. All three plaintiffs still live at A Country Place.

”It’s unfortunate that the condo association didn’t listen to them,” Roman said. “When they started this, they only wanted, I believe, two more hours of pool time. It’s really unfortunate that it had to get to this point.”

The lawyer who represented the condominium association, Angela Maione Costigan of Costigan & Costigan LLC, and an association representative named in the opinion, Fagye Engleman, could not be reached late Monday for comment.

Judges say sex-segregated swim policy discriminates against women by Stacey on Scribd

Follow Andrew Ford on Twitter: @AndrewFordNews.

This article originally appeared on Asbury Park Press: Sex-segregated pool schedule ruled unlawful after married couple who wanted to swim together fined