Most, if not all, of the pool rules we see which violate the Fair Housing Act were not written to intentionally discriminate against a protected class though that was the unintended outcome. In fact, the rules were most likely written with the intention of creating a safe environment or preventing physical injury to the residents of the community. The Fair Housing Act, however, does not consider the ‘intent’ of the rule or of those who created the rule since that can often be impossible to prove or interpret. According to HUD, as long as the effect is discriminatory, the rule would be regarded as discriminatory.
Unfortunately, many housing providers, especially Home Owners Associations, are misguided by rules written many years ago, and they are stubborn to change the rules because, let’s face it, most HOA board members have no legal or fair housing background. The refusal to review a rule when it’s brought to the attention of the housing provider that it has a discriminatory effect can provide an opportunity to alleviate a potentially bad situation, or inspire a victim of discrimination to take the next step and file a Fair Housing Complaint.
For brevity’s sake, here is a list of some discriminatory Swimming Pool Rules we have seen resurface and recycled in the housing provider community:
- No children under 3 years of age allowed in the pool
- No child under 18 without a relative over 21
- No more than 2 children per adult allowed in the pool area
- No Disabled person can use the hot tub without another nondisabled adult present for safety reasons
- Disabled persons must use the shallow end of the pool only
- Only toilet trained children are allowed in the pool area at any time
- Any person wearing a diaper is not permitted in the pool at any time
- Children under 18 years of age must be accompanied by an adult to use the pool at any time
- Children under 6 years of age must use the kiddie pool
- Children are not permitted to use the pool during Adult Swim times
- Children can only use the NW pool; other pools are for adults only
If any of the abovementioned rules are familiar to you, I wouldn’t be surprised since they tend to reappear verbatim in many of our fair housing cases.
Let’s examine a few of these.
Pool rule #1 overtly prohibits children and therefore is classic Familial Status discrimination under the Fair Housing Act. This rule would discourage families with children from wanting to reside at such a property that enforced such a rule.
Pool Rule #2 is extremely limiting to the point that it is exclusive. Imagine having to fulfill those age requirements just to take a dip in the pool. As a result, children, cannot use nor enjoy the swimming pool when others have access to the pool without restriction.
Pool Rule #4 overtly discriminates against the disabled, and it improperly makes assumptions about the disabled person in question. Why would a person who did not have use of his left hand be prohibited from using the hot tub, for example?
Pool Rule #6 does not even permit children in the “pool area” let alone the pool. How could a parent use and enjoy the pool area with their children if this rule was enforced?
Pool Rule #7 discriminates against children and potentially against the disabled. We saw this rule appear at two different apartment complexes in Louisiana and Missouri. To start, all states have approved “swimmies,” or swim diapers, to be used by children in public pools so this rule clearly is discriminatory. Furthermore, Fair Housing Advocates, Inc. is very concerned about the choice to use the word “person” in this rule. There are many disabled persons, including adults, who are affected by incontinence which itself is a recognized disability. There are also many disabled military veterans who suffer from PTSD [Post Traumatic Stress Disorder] whom are also affected by incontinence due to the side effects of their medication. Based upon this rule a disabled person who would wear the ‘adult swim diapers’ would not be permitted to use the swimming pool.
Pool Rules #9, 10, and 11 are only permissible in a bona fide age restricted community- like a 62 and older retirement community, provided the community did not discriminate against any other protected class. Otherwise these rules segregate children from the rest of the community, and in communities where there are multiple pools families with children can only use and enjoy one of those pools. These rules clearly discriminate on the basis of familial status.
If any of the above rules are familiar, please send us a picture of the pool rules, or a copy of your housing provider’s Rules & Regulations for our review to firstname.lastname@example.org or fax to 1 (800) 985-1050, or reach us at (877) 838-9963. If you, or someone you know, has been affected by any of the abovementioned rules, please reach us to learn about how we can protect and establish your fair housing rights at no cost, regardless of your household income.
Fair Housing Advocates, Inc. is a nonprofit fair housing organization and we will assist any person, regardless of their household income, for free.