                                          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)
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




                               2
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




                                   3
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 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). We disagree. On the facts
before us, the pool schedule discriminates against women in
violation of the FHA. We need not determine whether sex-
segregated 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.




                              4
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




                              5
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.




                             6
        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.




                               7
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




                                8
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.




                               9
        “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 decision-
making 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).




                               10
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-




                              11
                      *    * * * *
        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.




                              12
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).
       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.




                                2
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).




                                3
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




                                 4
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.




                                5
