Yes, that is that is true. The Fair Housing Act prohibits discrimination in housing on the basis of, among other things, familial status. Your community association cannot adopt a rule which discriminates against families with children. Your rule does just that. Instead, your board should adopt a rule of which is age neutral which can accomplish the same purpose. For example, your board could adopt a rule which prohibits persons who are not competent swimmers from using the pool without competent supervision.
Shapiro Gettinger & Waldinger, LLP
118 N Bedford Rd
Mount Kisco, NY 10549-2553
Community association rules and regulations such as the one at issues here are presumably intended to control nuisances, crowds, health and safety and prevent injury rather than to discriminate. Nonetheless, federal fair housing laws protect against rules that have a discretionary effect, regardless of intent. A pool rule that has the effect of discriminating when applied to a protected class likely violates the Fair Housing Act (FHA).
Communities should avoid rules that limit conduct to a particular age group. Rules should not target someone based on age, gender or familial status. Any rule or policy applicable to children could result in a discrimination accusation.
While the FHA and state fair housing laws prohibit discrimination based on race, color, religion, sex or national origin and familial status, they do not completely preclude housing providers from implementing reasonable health and safety rules. Courts that have addressed such rules generally require they be based upon a “compelling business necessity” and that the rule adopted represent the “least restrictive means” to achieve the community’s stated purpose.
Courts have found that rules requiring adult supervision of children at common areas amenity facilities were discriminatory and in violation of the FHA. “[T]he requirement of parent or legal guardian supervision transforms this rule from one that could be reasonably interpreted as a safety precaution to one that simply limits children and their families.” Pack v. Fort Washington II, 689 F. Supp. 2d 1237, 1246 (E.D. Cal. 2009).
The bottom line is, the warning you have been given about this rule is valid. It would likely be found discriminatory if challenged. It should not be enforced and should be deleted from the association’s rules and regulations.
Sean A. O’Connor
Finkel Law Firm LLC
4000 Faber Place Drive, Suite 450
North Charleston, South Carolina 29405
Direct Dial 843.576.6304
Yes. It is true that there are some discrimination cases alleging familial status discrimination pertaining to pool rules that restrict or prohibit children from using pools; or that require adult supervision.
I would recommend that the rule in question be eliminated immediately. There was a case in California, where a family with children aged 14 sued and won. The kids were on the swim team and good swimmers. The rules was deemed to discriminate against families with children.
Hellmuth & Johnson, PLLC
8050 West 78th Street
Minneapolis, MN 55439