MHCO Columns

Fair Housing Pit Falls: Not Allowing Children to Use the Community Swimming Pool

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Family status is the fourth most commonly alleged ground of federal fair housing discrimination, trailing only disability, sex, and race. Many familial status complaints are the result of misguided safety rules involving children, particularly with regard to swimming pools.  

Spot the Discrimination Mistake

Without the financial resources to provide lifeguards, a landlord adopts a safety rule banning children from using the community swimming pool.   

Pitfall: While banning children from the community pool might prevent drownings, it would also run afoul of FHA regulations that 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” [24 C.F.R. §100.65(b)(4)].

Although HUD guidelines state that it’s okay to impose “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings,” they also impose specific restrictions. Among other things, the rule must serve a compelling safety interest that can’t be achieved via less discriminatory alternatives.

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)].  

Solution: Even if you could show that its sole intention is to ensure kids’ safety, banning children from the pool would be all but unjustifiable given all the less restrictive ways you could accomplish that objective. If it’s unruly behavior you’re worried about, the answer isn’t to exclude children but any and all troublemakers. If children are the problem, your first recourse should be to speak to their parents or guardians.