Many people stereotype musical instruments. For instance, people think of the flute and harp as feminine instruments while the trumpet and drums are considered masculine.  Some teachers and parents steer children to instruments based upon gender.

Instrumental stereotypes result in gender imbalances in professional orchestra.  A survey of the top 20 US orchestras revealed that ninety-five percent of professional harpists and 68% of professional flutists are female. But only six percent of professional percussionists and nine percent of professional string bass players are women. 

Stereotypes also evident in the disproportionate percentages of women in leadership roles in professional orchestras. For example, although 59% of professional violinists are female, they represent only 18% of concertmasters (the top violinist in the orchestra).  And only nine percent of orchestra conductors are women.

Although it’s unfortunate when young musicians are pigeon holed into instrument selection based upon gender stereotypes rather than individual interest or aptitude, it’s possibly not unlawful. However, most housing management companies know that it is illegal to stereotype residents based upon gender, religion, race, and other protected attributes in the tenant selection process. And they know that it’s illegal to steer individuals to a particular type or location of housing based upon those stereotypes.

Many may not think that something as mundane as a swimming pool use schedule could cause a fair housing violation.  However, that’s what happened to the A Country Place Condominium Association (“Country Place”) when it established its swimming pool use schedules. This case shows how restriction of multifamily amenity use based upon stereotypes can violate fair housing laws.

Country Place’s Swimming Pool Schedule

Country Place was the home to an increasing number of Orthodox Jewish residents. Orthodox principles of modesty provide that it is improper for men and women to see each other in bathing suits. To accommodate those Orthodox principles, Country Place’s board established a swimming pool use schedule. 

Under Country Place’s schedule, there were 31.75 hours of “mens swim” and 34.25 hours of “ladies swim” per week.  Ladies swim ran from 8-11 AM and 3-4 PM Sunday- Friday. Women also could swim from 5-6:45 PM on Sundays, Tuesday, and Thursday. The 3-4 PM time slot was designated “adult residents only.”

Men’s swim was 11-1PM Sunday – Friday, 6:45-9:00 PM on Sunday, Tuesday, and Thursday, 5:00-9:00 on Monday and Wednesday, and 4:00-9:00 PM on Fridays.  The Country Place board representative testified that Men’s swim started earlier on Fridays, because on Friday afternoons, women were at home preparing the sabbath dinner.

The remaining 25 hours, were open to all without regard to gender. Thirteen of the “mixed gender” hours were on Saturday when Orthodox residents would not go swimming because it was their sabbath, and rest were from 1-3PM. Country Place’s board made slight changes to the schedule in response to complaints, but they did not increase the “all residents” swim time.

The Fair Housing Lawsuit

Three residents brought a lawsuit against Country Place’s board, claiming violation of the Fair Housing Act (FHA) due to discrimination based upon sex. One plaintiff, a woman, had been fined by Country Place’s board for swimming during the “men’s swim” times.  The other two plaintiffs were a husband and wife. The wife had a disability which benefited from water therapy, with which her husband wished to assist.

Country Place board responded by noting that the schedule allowed roughly the same amount of time for each sex.  Further, the board noted that the swimming pool use schedule wasn’t motivated by malice towards either sex.

The Third Circuit Court of Appeals noted that although the pool use policy provided for roughly equal use by both sexes, that the times given to each sex were based upon gender stereotypes.  The scheduled appeared to assume that except for the lunch hour, men would be at jobs but that women could go swimming. Women who work during the regular work week had few evening swimming options.  Plus, the Friday times were based upon a gender stereotype: that women always cook meals.

The Court noted the County Place board’s claim was similar to the “separate but equal” policy used to justify race discrimination until outlawed in Brown v. Board of Education in 1954. Because the swimming pool policy was patently based upon gender stereotypes, the Court held that lack of malicious intent couldn’t save it.

What the Country Place Lawsuit Didn’t Decide

The Country Place Court struck down the swimming pool use policy because it was based upon gender stereotypes. Although the Court did reference the now-outlawed “separate but equal” policy, the Court didn’t say that a swimming pool use schedule which separated men and women always is unlawful. This leaves open the possibility that a pool use schedule which wasn’t based upon gender stereotypes and which allotted equivalent morning and evening hours to men and women might be lawful.

The Court also didn’t discuss whether the swimming pool use policy discriminated based upon familial status because it included “adults only” swim times which limited the times when families could swim together. Likely this issue didn’t come up because the Plaintiffs didn’t raise it. Still, a policy which would severely restrict a single mother from swimming with her son or a single father from swimming with his daughter might not withstand a fair housing challenge.

The Court also didn’t discuss whether Country Place must have at least some separate men’s and women’s swim times to accommodate Orthodox Jewish residents’ religious beliefs under the FHA. Since those residents’ religious beliefs were accommodated, the issue didn’t come up.

The Court did, however, note that the Religious Freedom Restoration Act (RFRA) didn’t apply to the Country Place board, because the condominium association, itself, did not have a religious purpose. The result under RFRA might be different if, for instance, the housing had been senior housing managed by Jewish organization whose purpose was to promote Jewish values.

The Court didn’t consider whether allowing the married couple to use the pool together so the disabled spouse could receive therapy was required as a reasonable accommodation under the Americans with Disabilities Law or other disability discrimination laws. Had the couple based their request to use the pool together on ADA requirements, Country Place might have had to make reasonable accommodations.  That might have required modification of the pool use schedule to accommodate the couple.

Multifamily Amenity Policy Tips

Multifamily property managers, like the Country Place board, must many interests when developing amenity use policies. Sometimes, as with Country Place, the interests of one group of residents might conflict with those of another group. Manager should consider the following when establishing, modifying, or enforcing amenity use policies.

• Know the Fair Housing Laws Applicable to Your Property. Besides the FHA, many state and local governments have fair housing laws, which can cover categories not mentioned in the FHA.

• Be Aware of Other Laws and Restrictions Applicable to Your Property. Some properties may be subject to zoning or noise laws that limit bright lights or noise and which might restrict when amenities can be available. Some amenities, such as swimming pools and tanning facilities, may be subject to sanitation, safety, and age restrictions.  An amenity use policy should include practices and time for legal compliance. Examples include prohibiting children who aren’t potty trained from entering a pool without swim diapers and rubber pants or establishing breaks to provide time for routine cleaning and maintenance.  Some places may require lifeguards which limits when residents can use a pool. There might be a minimum age for safe use of tanning beds or exercise equipment.

• Know and Understand Your Entire Resident Population. Understand your tenant demographics and their needs. Country Place’s board showed sensitivity to Orthodox Jewish residents but appeared to be blind to other residents’ needs. Consider include residents in the process when establishing major amenity policy changes.

• Create Written Policies. Policies should both comply with the law and meet resident needs. Avoid policies which exclude anyone and be cautious about policies which disproportionately impact any group.  A senior apartment community might not be upset with an adult swim only policy during the work week, but a similar policy might not make sense and could be unlawful in a community where families with children reside.

• Communicate. Communicate policies to all residents and employees. Leases or condominium agreements should include existing policies and require compliance with future ones.

• Train Employees About Laws and Restrictions Applicable to the Property. Conduct formal training for new employees. Also conduct regular, ongoing training on fair housing and other applicable laws to assure employees’ knowledge is up-to-date.

It may not be possible to please everyone, but it is possible to create policies which don’t violate the FHA or other laws. And with good communication, a property manager can address resident concerns and attempt to meet everyone’s needs before they end up in court.

This series draws from Elizabeth Whitman’s background in and passion for classical music to illustrate creative solutions for legal challenges experienced by businesses and real estate investors.