How to Avoid Setting Discriminatory Swimming Pool Rules

Drowning is the second leading cause of death for children in the U.S, behind only motor vehicle crashes. The vast majority of fatal drownings involving kids ages 1 to 4 happen in swimming pools. In many of these incidents, the victim is a child who couldn’t swim who somehow gained unsupervised access to the pool. That’s why strict safety rules are an absolute must for any apartment community that has a swimming pool.

But while pool rules are essential to safety and sanitation, they’re also a frequent source of family status discrimination complaints under the Fair Housing Act. What makes this liability risk so pernicious is that landlords seeking only to protect children and sanitation may employ strategies that have unintended and inadvertent discriminatory effects on families with children. It’s only after they get sued that landlords recognize this.

With spring just around the corner, this month’s lesson is dedicated to helping you avoid inadvertently discriminatory pool rules. First, we’ll explain how what looks like such a perfectly neutral and legitimate rule—such as, “children may not use the pool area without parental supervision”—can result in fair housing liability. Next, we’ll lay out seven pool rules that are most likely to get landlords into fair housing hot water and how you may be able to recast the rule to make it a legitimate safety or sanitation measure. Finally, we’ll give you a Quiz enabling you to apply the lessons and determine how well you’ve learned the material.  

WHAT DOES THE LAW SAY?

Section 3604(b) of the federal Fair Housing Act (FHA) bans discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of” family status.  

Regulations from the U.S. Department of Housing and Urban Development (HUD) make it illegal to “deny or limit services or facilities in connection with the sale or rental of a dwelling” on the basis of family status [24 C.F.R. §100.65(a)]. Prohibited actions include “[l]imiting the use of privileges, services or facilities associated with a dwelling because of . . . familial status, . . . of an owner, tenant or a person associated with him or her” [24 C.F.R. §100.65(b)(4)].

The problem is that just about any kind of safety or sanitation rule regulating children’s pool use that you impose is apt to have at least some restrictive impact on children and their parents. This is true even if discrimination is the furthest thing from your mind in adopting the rule. So, it’s no coincidence that ever since Congress added “familial status” protection to the FHA back in 1988, allegedly discriminatory pool rules have spawned numerous HUD investigations and lawsuits.

HUD Memo Allows for Reasonable Health & Safety Rules

Does that mean you can’t have pool safety rules to protect kids and sanitation?

Answer: Not at all.

Explanation: A 1992 HUD memo clarifies that the FHA doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” such as requiring adult supervision of young children using a swimming pool without a lifeguard. Issued in August of that year by then General Counsel Carole W. Wilson, the internal memo instructs HUD lawyers that if someone were to file a complaint alleging that rules limit the ability of families with children to use the pool or other common facilities, HUD would consider the facts of the specific case, including:

• The rationale for the rules;
• The degree of limitations the rules place on families with children;
• Whether the rules are mandated pursuant by a state or local requirement; and
• If so, whether those state or local requirements are reasonable.

How the Principles Play Out in Actual Cases

To appreciate the real-life impact of these principles, it helps to understand how lawsuits involving allegedly discriminatory pool rules actually work. There are two basic forms of discrimination: direct and disparate impact—that is, policies or practices that are neutral on their face but have the effect of discriminating against a protected group. To the extent they discriminate against families with children, pool rules are usually a form of disparate impact rather direct discrimination.

In a disparate impact lawsuit, the plaintiff, or person who files the complaint, has the burden of making out what’s called a prima facie (Latin for “first case”) case by showing that the pool rule in question had a discriminatory effect. If the plaintiff doesn’t meet this burden, the landlord can get the case dismissed without a trial. Even if the plaintiff does make out a prima facie case, the landlord can still get the case tossed out by showing that the policy serves a legitimate, compelling purpose and does so in the least restrictive means possible.

Consider the following scenario: A landlord adopts a rule banning children under age 15 from using the pool unless they’re accompanied by “a parent or adult guardian.” A tenant with a 5-year-old child claims the rule is discriminatory and sues for damages:

Step 1: The Prima Facie Case: Although it sounds like a nondiscriminatory safety rule, the tenant should be able to make out a prima facie case by showing that it has a disparate and unfavorable impact on families with children 14 and under.

Step 2: The Legitimate, Least Restrictive Rebuttal: The burden would then shift to the landlord to justify the rule by showing that it serves a legitimate, compelling purpose in the least restrictive way possible. Satisfying the first prong would be no problem—after all, keeping kids from drowning is certainly a compelling and nondiscriminatory purpose. But the landlord would lose on “least restrictive” since the wording of the rule as requiring a “parent or adult guardian” would unreasonably exclude a babysitter or older sibling from accompanying a child.

End Result: The tenant survives the motion to dismiss and wins the right to take the case to trial. That puts her in a strong position to negotiate a settlement with the landlord. That’s because having failed in its attempt to get the case dismissed, the landlord now faces the risk of trial. Avoiding this great unknown creates a strong incentive to pay money to settle the case.

7 DISCRIMINATORY POOL RULES TO AVOID

So, how does this affect you? When you boil the legal analysis down to practical terms, it means that while pool rules imposing restrictions on children and their parents may have discriminatory effects, you can still justify them as long as you can show that they’re:

• Necessary to protect health and safety; and
• Are no more restrictive than they have to be to meet the safety objective.

Safety and sanitation are compelling and legitimate purposes. Consequently, liability typically depends on whether the rule is more restrictive than it must be to accomplish the safety and sanitation objectives. And that, in turn, means that the problem is not in having pool rules but in formulating them too broadly. With that in mind, here are seven bad pool safety rules that are likely to expose you to family status discrimination liability.

Bad Rule #1: Children May Not Use the Swimming Pool

One way to prevent kids from drowning in your community swimming pool is to not let them use it. But such a rule would clearly run afoul of the ban on “limiting the use of facilities.” Banning kids from using the pool reeks of deliberate discrimination against families with children.

Solution: There really is no solution for this one. Even if you could show that its sole intention is to ensure kids’ safety, the rule would be almost unjustifiable given all the less restrictive ways you could accomplish that objective.

Example: A California landlord adopted a rule stating that “under no circumstances may children play” in the pool area walkways. The federal court held that the rule was “facially discriminatory” because it treated children less favorably than other persons. While child safety was a compelling goal, the rule wasn’t the least restrictive means of ensuring it, the court reasoned. If the landlord was concerned about safety in the pool walkways, it should have banned all residents from playing on them, not just children [Rojas v. Bird, 2014 WL 260597, at *2 (C.D. Cal. Jan. 10, 2014)].

If it’s unruly behavior you’re worried about, the answer isn’t to exclude troublemakers, let alone all children, but to express your concerns to their parents or guardians.

Bad Rule #2: Children May Swim Only in the Family Pool

Communities with multiple pools may be tempted to have separate “family” and “adult” pools to not only enhance safety but ensure adult tenants a place to swim in peace and quiet. That’s a bad idea likely to result in a family discrimination complaint, especially if the “adult” pools are more numerous, in better locations, or superior in quality.

Example: A resident with young children sued her California condo community for barring children under age 18 from the “main” pool. While sympathetic to the desires of adult residents to be able to swim laps and enjoy the pool without being distracted by noisy and active kids, the federal court allowed the resident to take her family discrimination case to trial. Catering to the discriminatory preferences of adult residents is no more than having separate pools for people of different races, nationalities, or religions, the court reasoned [Landesman v. Keys Condominiums, U.S. District Court N.D. California, unreported].

Solution: As with Bad Rule #1, requiring “families” to use a separate pool would be extraordinarily difficult to justify as being the least restrictive option available. However, the ban on separate pools doesn’t preclude you from having special shallow and wading “kiddie pools” for young children.

Bad Rule #3: The Hours of [a.m./p.m.] Are Reserved for Adult Swims

Another bad rule is establishing “adult swim” times when kids have to get out of the pool and adults can have it all to themselves. Even though the ban is just temporary, HUD and the courts have made it clear that this practice raises a bright red flag. “Rules which restrict children from using swimming pools during certain hours could prevent families with children from having full use and enjoyment of the premises,” notes the 1992 HUD memo we discussed earlier.

Example: A Florida community was hit with a $10,000 fine for adopting a rule allowing children access to the pool only from 11 a.m. to 2 p.m. What really bugged the court wasn’t so much the idea of having an hours’ restriction as limiting it to three hours during which kids would likely be at school and parents would likely be at work [HUD v. Paradise Gardens, Case No. HUDALJ 04-90-0321-1 (HUD ALJ, 1990)].

Solution: The Paradise Gardens case and others like it imply that reserving a time for adults to use the pool without kids isn’t per se discriminatory and may be justifiable if the window is short and occurs at reasonable times, like when a lifeguard can’t be on duty or after bedtime hours when kids are usually asleep.

However, keep in mind that there are also less restrictive ways to accomplish the purpose of an “adult swim” rule, such as having “laps time” during which lanes must be kept clear for anybody who wants to swim laps. If the purpose of a temporary no-swim rule is to prevent overexertion, it should apply to all swimmers, not just children. Consider imposing a 15-minute break for all at a designated quarter of every hour the way many public pools do.

Bad Rule #4: All Children Must Be Supervised by a Parent or Adult Guardian

Adult supervision requirements are the leading source of pool-related family discrimination complaints. The safety rationale for such rules is clear. After all, swimming without adult supervision is the leading cause of drowning deaths for young children. As HUD acknowledges in its 1992 memo, in contrast to full or partial bans on children’s use, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic.”

Practical Impact: The legality of adult supervision rules depends on how they’re framed. Stated differently, you can require adult supervision as long as the rule is narrow and no more restrictive than it has to be to accomplish the purpose.

The starting point is to recognize and be able to articulate the purpose of an adult supervision rule—namely, to ensure that people who can’t swim don’t use the pool unless somebody who can swim supervises them. Thus, while it’s true that many young kids can’t swim, lots of adults also lack proficiency in swimming. The danger of swimming unsupervised, in other words, is based not on a person’s age but the fact that he or she can’t swim. Once you introduce age and family relationship into the equation, you take the supervision rule to places it shouldn’t go.  

Example: The parents of three young children sued their California landlord for adopting a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.” Too restrictive, said the federal court. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive,” reasoned the court. While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Solution: The least restrictive and most nondiscriminatory way to accomplish the safety objective of the adult supervision rule is to frame the rule in terms of swimming proficiency and the ability to supervise responsibly. Options:

• Require supervision of not just children of certain ages but any person who can’t swim;
• If you do use age requirements, look at local laws regarding unsupervised children in determining a suitable age restriction;
• Require all would-be pool users—and not just children—to pass a swimming proficiency test administered by a competent lifeguard or swim instructor.

Also be careful about who the rule says must supervise the non-swimmer. Don’t use the words “parent” or “guardian.” “Adult,” too, may be problematic to the extent it excludes 16- and 17-year-olds with lifeguard training or who are otherwise proficient to supervise a non-swimmer.

Bad Rule #5: Children May Not Leave Toys, Run, or Engage in Horseplay Around Pool Areas

Nobody disputes that it’s justifiable to require children to behave themselves and refrain from unsafe and unreasonably noisy or disruptive conduct in pool and other common areas. Once again, though, the problem isn’t the rule’s intent but how you phrase it.

Example: In April 2018, the owner of a 44-unit California apartment community was fined $25,000 for implementing “house rules” that discriminated against families with children, such as banning children from riding bicycles, using skateboards, or playing with Hot Wheels, wagons, or balls in pools and other common areas. While banning skateboards and other restrictions in pool areas seemed reasonable on their face, they applied only to children and there were no corresponding rules banning specific kinds of behaviors by adults in these areas [California Dept. of Fair Employment & Housing, April 10, 2018].

Solution: Ban behaviors without mentioning the persons who engage in them. Appropriate behaviors to ban in and around pools, regardless of who commits them, include:

• Running on the pool deck;
• Diving;
• Use of profanity or other offensive language;
• Being unreasonably loud or noisy; and
• Horseplay and “dunking.”

Also be careful with rules regulating toys:

• Wrong: “No children’s toys are permitted in the pool area”;
• Right: “No beach balls, rafts, inner tubes, squirt guns, sports balls, or the like are permitted in the pool area.”

Exception: Age-related restrictions on the use of diving boards, slides, and other pool equipment may be justified if they’re consistent with manufacturers’ instructions, generally accepted apartment industry standards, and safety standards from health and safety organizations like the U.S. Centers for Disease Control (CDC). For example, requiring children to be at least 14 years old to use a slide would likely be acceptable if the manufacturer specifies that the slide isn’t safe for children ages 13 and under.

DEEP DIVE

Sources of Swimming Pool Health & Safety Standards

Chapter 14 of the CDC Healthy Housing Reference Manual sets out safety standards for residential swimming pools. The American National Standards Institute (ANSI) is also a good source of health and safety standards for public swimming pools, including:

• ANSI/APSP/ICC-1 2014 American National Standard for Public Swimming Pools;
• ANSI/PHTA/ICC-7 2020 American National Standard for Suction Entrapment Avoidance In Swimming Pools, Wading Pools, Spas, Hot Tubs and Catch Basins;
• ANSI/PHTA/ICC-11 2019 American National Standard for Water Quality in Public Pools and Spas.

Bad Rule #6: Children in Diapers or Who Aren’t Toilet-Trained May Not Use the Pool

This is still another variation on the same theme we’ve been discussing. Keeping people from relieving themselves in the pool for purposes of sanitation is clearly legitimate. The key is framing a rule to accomplish the objective in the least restrictive way possible. Banning young children who aren’t toilet-trained from the pool won’t work for two reasons:

• It doesn’t account for incontinent adults who may also soil the pool; and
• You can accomplish the sanitation purpose without totally banning pool use, such as by requiring children to wear waterproof pants in the pool.

Solution: Rather than banning “children,” “children in diapers,” or “children who aren’t potty-trained” from entering the pool, require any person who’s not toilet-trained to wear waterproof diapers under their swimsuits.

• Wrong: Children who are not toilet-trained are prohibited from entering the pool;
• Right: Any person who is incontinent or not fully potty trained must wear appropriate waterproof clothing when entering or being carried into the pool.

Caveat: This is where things can get tricky. While the second formulation resolves the family status discrimination problem, it may leave you vulnerable to a disability discrimination complaint if an adult is incontinent due to a disability. So, you should to talk to your attorney about adding modifying language indicating that reasonable accommodations will be made for persons with disabilities.

Bad Rule #7: Swimmers Must Wear Traditional Swimsuits When Using the Pool

This rule may be a form of disparate impact discrimination not against families with children but tenants who practice a religion that prohibits the wearing of “traditional” swimwear because it’s too revealing. Another dress code rule that can get you into trouble is a ban on a particular kind of swimsuit traditionally worn by one sex, like a bikini.

Solution: There are two basic reasons that landlords may try to legislate what kinds of swimsuits tenants can and can’t wear. The first is to maintain what the landlord deems to be an appropriate level of morality around the pool. While it may be the basis for a request, morality would generally not be deemed justification for a requirement that has a discriminatory impact on a protected class. Thus, barring exceptional circumstances, morality-based swimwear rules won’t fly no matter how you phrase them.

However, it may be justifiable to impose swimwear restrictions for purposes of sanitation—for example, a requirement that swimmers with long hair wear a bathing cap, or, to protect pool systems, a ban on cut-off shorts to keep fibers out of pool filters. For the same reason, a rule requiring swimmers to wear clean, colorfast, lightweight material that is suitable for swimwear, such as Lycra, spandex, or nylon may be defensible.

Just be sure that you can articulate your nondiscriminatory purpose for the rule and ensure that it covers both men and women and is no more restrictive than necessary to accomplish that purpose. Example:

• Wrong: Women with long hair must wear bathing caps;
• Right: All individuals with hair longer than X inches, as measured from the top of the head to the shoulders or back, must wear bathing caps.