The Federal Fair Housing Act, 42 U.S.C. 3601 prohibits housing providers from discriminating on the basis of race, color, national origin, religion, sex, marital status and disability. Most states, including Florida, have their own anti-discrimination laws, such as the Florida Fair Housing Act. In Florida, community associations are bound by both the Federal and Florida fair housing laws.

On April 22, 2019, the United States District Court of Appeals for the Third District issued an opinion that is reverberating through-out the community association industry. In Curto v. Country Place Condominium Association, Inc., the plaintiffs filed a lawsuit alleging violations of the Federal Fair Housing Act, 42 U.S.C. 3601.

At issue in the case were rules instituted by the condominium association segregating men and women swim hours during use of the community pool. Over two-thirds of the residents in the condominium association were of the Orthodox religion. The scheduled segregation was implemented by the association because one of the Orthodox principles is that men and women cannot see each other in a state of undress, which includes bathing attire. The segregated hours applied to almost two-thirds of all swimming hours for the week. Except for Saturday, which was a mixed-swim day, there were only twelve integrated swim hours each week.

When the plaintiffs were fined for violating the rules by swimming outside of their gender’s designated times, they brought the lawsuit against the association. The condominium association argued that the segregated schedule applied to men and women equally. Both sexes were given about the same amount of time on the schedule. The district court agreed with the association. However, the Third District Court reversed the ruling because they found that even though the schedule provided about the same amount of time for men and women, women had few time slots outside of conventional daily work hours. Women were only given 3.5 hours outside of work hours and men were given 16.5 hours outside of work hours. Consequently, the Court ruled the condominium association disparate treatment of the sexes violated the Federal Fair Housing Act’s prohibition on discrimination on the basis of sex. The Court did not address whether the association’s segregated swim hours in and of themselves violated the Fair Housing Act or whether a more equal schedule might have sufficed and not been discriminatory.

Although the association did not raise the Religious Freedom Restoration Act, 42 U.S.C. §2000 bb, et. seq. as a defense, the Court had both parties address the issue in memoranda. In a footnote to the decision, the Court found the association did not meet the prongs required because the rules did not have a religious purpose. Since religion is a protected class under the Fair Housing Act, if an Orthodox owner had brought a discrimination case against the association for removing the segregated swim hours, the Court may have been forced to rule whether the more equally applied segregated swim hours were facially discriminatory or within the association’s rule making authority.

This case, as many before it, shows community associations that it is extremely important to evaluate all rules and provisions in the governing documents to make sure they do not have a discriminatory impact. Although some rules may seem equal (i.e., number of swim hours were equal for both men and women), once applied, they may be unintentionally discriminatory. In fair housing cases, non-discriminatory intention alone may not save an association from an adverse ruling.