If your community has a pool, you’ve probably set some basic ground rules to prevent accidents and injuries. But unless your rules are reasonable; that is, based on common sense and designed to further legitimate goals like the safety of your members, and unless you and your staff enforce the rules consistently, you could be vulnerable to fair housing complaints and lawsuits.
In particular, your rules could leave you vulnerable to fair housing lawsuits if they target, even inadvertently, people protected by the federal Fair Housing Act (FHA), such as people with children.
The FHA bans discrimination based on color, disability, familial status, national origin, race, religion, and sex. If your community has a pool, you must make it available to all members and their guests. Even senior communities must allow visiting children to have access to and use amenities. You also must set rules that ensure members’ and guests’ safety and that don’t discriminate against people protected by the fair housing law. And you must enforce your rules consistently. If you don’t, you may be accused of discrimination.
Here are 10 guidelines to follow when setting your community’s pool rules, and thereby help prevent fair housing lawsuits.
- Base Rules on Manufacturers’ Recommendations or Other Objective Standards. The best way to ensure that your rules are reasonable is to base them on outside, objective resources such as:
- Manufacturers’ recommendations. Base rules regarding use of pool-related equipment on manufacturers’ recommendations. Manufacturers of pools and pool-related equipment typically give recommendations on who should be allowed to use their products. For example, a diving board manufacturer may recommend that only people over age 13 be allowed to use the board, or a slide manufacturer may recommend that only children 16 or younger be allowed to use the slide.
- Other objective standards. Base pool rules, such as which children need adult supervision when using the pool, on objective standards. Since there’s no national law that gives guidance on this issue, you might want to consider basing your rule on the local parks and recreation department’s rules. Doing so could help you prevent a fair housing complaint regarding these rules.
2. Don’t Ban Children from Pool
Since children are most vulnerable to pool accidents and so have the potential to be a source of liability for you, you may be tempted to ban them from your pool. But if you do this, you could be accused of discrimination, and ordered to pay a damage award.
Example: A Florida community banned children under age 5 from using the pool. Several families with children sued, claiming that this rule violated fair housing law. The owner of the community claimed that the rule was based on safety concerns. But the court disagreed, noting that experts testified at trial that a less drastic way to prevent children from drowning in pools would have been to require adult supervision. The court awarded the families over $10,000 in damages and penalties.
So, instead of banning young children from using your pool, require adult supervision of children under a certain age. What age should be the cutoff point? That’s up for you to decide, but certainly it shouldn’t be any older than 14 year old, because the Red Cross certifies 15- and 16 year-olds as lifeguards. If you wish, you can set an age lower than 14, but remember that your primary goal is to protect children, so don’t set it too low.
3. Don’t Create ‘Adult’ Pools and ‘Family’ Pools
If your community has more than one pool, it’s okay to have “kiddie” pools; that is, wading pools for infants and toddlers. But don’t label some pools “adult” pools and others “family” pools, and then restrict children to family pools. If you do, families with children may claim that you’re discriminating against them—especially if there are more adult pools than family pools in your community.
Example: A California woman with a 3-year-old daughter moved into a community with six swimming pools: four adult pools for people over 18, and two family pools for children under 18. The woman sued the community, claiming that its policy of having adult and family pools violated fair housing law. The court agreed, ruling that by banning children from access to four out of six pools, the community was unfairly penalizing families with children.
4. Don’t Restrict Children’s Access to Prescribed Hours
Don’t restrict children’s access to your pool to prescribed hours, especially if those hours are ones when children are traditionally in school.
Example: In the Florida case mentioned earlier, the families also claimed that the community’s rule restricting children’s access to the pool to between 11:00 am and 2:00 pm violated fair housing law. The community claimed that because children are typically noisy when they play in the pool, it was entitled to restrict their access to the pool to these hours, as a courtesy to other members. The court ruled that the restriction violated fair housing law. It said that the hours set aside for children prevented them from using the pool at all during the school year, and prevented working parents from enjoying the pool with their children during the work week. The court also said that the hours of 11:00 am to 2:00 pm were unreasonable because, in summer, these hours fall during the hottest part of the day, when people—especially children—shouldn’t be out in the sun.
5. Set Fair Sanitary Rules
It’s reasonable for you to set rules designed to prevent pool water from becoming contaminated and people who use your pool from becoming sick, but that doesn’t mean you can ban, say, children who aren’t toilet trained from using your pool.
In the Florida case mentioned earlier, the community tried to justify its ban on children under 5 years old by arguing that they might soil the pool. But an expert testified that there’s “no correlation” between swimmers’ ages and how sanitary the pool is, noting that human waste has been found in pools in adult health clubs.
Instead of setting such a ban, require children who aren’t toilet trained to wear waterproof pants in the pool. Several companies now make disposable diapers specially designed for use while swimming.
If you wish, you may ask adults who are incontinent to wear waterproof pants in the pool. But think twice before doing requiring it, and talk to your lawyer too. If you require adults who are incontinent to wear waterproof pants in the pool, it will be difficult to enforce and could lead to fair housing trouble if an incontinent adult is disabled.
6. Don’t Set Behavior Rules that Target Children
It’s okay to set behavior rules for your pool, particularly for safety reasons, but if you do, make sure the rules don’t target a specific group, such as children. For example, instead of a rule saying “Children may not run or engage in roughhousing at the pool,” say, “No one may run or engage in roughhousing at the pool.” It’s okay to ban disruptive, dangerous behavior, as long as you ban everyone from doing it.
Also, if you decide to set rules limiting certain activities—like lap swimming or diving—to specific areas of the pool or times of day, limit only the activity, and not the person engaging in that activity. For instance, if you choose to reserve a lane in your pool for lap swimmers, don’t say, “The far right lane is reserved for adult lap swimmers only.” After all, children may be able to and want to swim laps, too.
7. Set Gender-Neutral Dress Code
You can require members to dress appropriately when using your pool, but don’t ban clothing worn by one sex, such as bikinis. If you do, you could be accused of discrimination based on sex. Instead, set a gender-neutral rule requiring appropriate pool attire. You can ban items like cutoff pants or thong bathing suits, only if both men and women wear them.
You can also require members with long hair to wear bathing caps—long hair can clog filters and drains. But remember, both men and women can have long hair, so set a rule that says “People with hair shoulder-length or longer must wear bathing caps.” This rule covers both men and women—and sets a clear standard for how you define long hair.
8. Don’t Ban Wheelchairs or Service Animals from Pool Area
Items with wheels can be dangerous around pools. If you decide to ban such items, exclude wheelchairs from the ban. People who use wheelchairs need them to gain access to your pool, and if you ban wheelchairs from the pool area, you could be accused of discrimination based on disability.
Instead, set a rule that says: “No bicycles, tricycles, scooters, skates, strollers, or carriages are allowed in the pool area.” It’s okay to ban bicycles, scooters, and skates because they aren’t necessary for access to the pool, and because they create genuine safety risks. And it’s okay to ban strollers and carriages because members with babies have other options, such as infant carriers, that they can use to bring their babies to the pool.
Pets can also be dangerous around pools. Pets may bother members and cause safety and health concerns. But if you decide to ban pets, don’t include guide, service, and companion animals in your ban, or you could be accused of discrimination based on disability. So make sure your rule says that animals necessary to assist members with disabilities are allowed in the pool area.
9. Put Rules and Reasons for Them in Writing
Once you’ve created reasonable pool rules, post them in your community’s pool area, and include them in your community’s rules and regulations that all members receive. The latter is also a good place to explain the logic behind your rules. Members will be less likely to challenge your rules if they understand the reasoning behind them.
10. Instruct Staff to Enforce Rules Consistently
It’s important to instruct your staff to enforce your pool rules consistently, and not to make exceptions. Exceptions can lead to trouble. Say your rules ban children under 14 from swimming in your pool without adult supervision. If a staff member makes an exception for a white 12-year-old child who’s on his school’s swim team, but then refuses to make an exception for an African-American 12-year old child who’s not on a swim team, you could be accused of discrimination based on race.
Jay Nussbaum, Esq.
*Jay Nussbaum is a founding partner of Berlandi Nussbaum & Reitzas LLP. He focuses on commercial real estate, including condominiums and cooperatives. He is a graduate of Brandeis University and Boston University Law School.