Spot the Discrimination Mistake
The precise rule: “Children ages 18 and younger may not use the swimming pool unless they are supervised by a parent.”
Pitfall: As HUD acknowledges in a 1992 Memo, “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” than a total or partial ban on children’s use. However, the legality of adult supervision rules depends on how they’re framed. Basic Rule: 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.
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 they 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.” 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;
- Require all would-be pool users—and not just children—to pass a swimming proficiency test administered by a competent lifeguard or swim instructor; and
- Rather than a “parent” or “adult guardian,” require non-proficient swimmers to be supervised by a proficient swimmer.
Revised Pool Rule: In the interest of safety and in accordance with local laws, individuals who are not proficient swimmers may not use the community pool unless they are supervised by a person who is a proficient swimmer.