If your association has a pool, odds are it's been busy this summer with all the 90 degree days we've enjoyed.  

And even though we are well into swimming season, it is not too late to review your pool rules to make sure they don't swim against the current of the Federal Fair Housing Act (FHA).

In our experience, most associations draft pool rules with the best of intentions to maximize resident safety.  Yet, many board members are surprised to learn that adult swim times are not allowed, or that they cannot prohibit minors from swimming unattended.  Even rules that are squarely grounded in conservative, safety-oriented principles may expose an association to legal challenge.

The FHA prohibits discrimination in the provision of services or facilities because of race, color, religion, and familial status, among other categories.  This prohibition applies to association pools, which means pool rules must be carefully drafted so that they do not discriminate.

Compliance can be harder than it seems.  For example, a rule banning Episcopalians (or any other religious group) from swimming in the pool is obviously ridiculous, and clearly discriminatory on the basis of religion.  If you have those types of rules at your pool, then you've fallen into the deep end and you better call a lawyer.  Yet, a rule banning minors from swimming alone seems reasonable, but similar rules have been successfully challenged in court, and found to be discriminatory on the basis of familial status (families with children, in this case).  In fact, familial status is often the lynchpin for a challenge to pool rules, because pools often have rules that are designed to ensure inexperienced swimmers are supervised.  Most of us associate inexperience and irresponsibility with persons of a young age, so associations adopt rules to control conduct based on a particular age, such as children age 2, 10 or 16.  Yet, when a rule mentions a specific age, it is per se discriminatory, which means the rule treats children, and families with children, differently and less favorably than households with no children.

Courts have said that to comply with the FHA, a rule must be reasonable and tailored to be the least restrictive means to meet a compelling business necessity.  In the context of pools, safety is a compelling necessity.  Accordingly, instead of a rule requiring a person under 18 (or a minor) to swim with an adult (which courts have reasoned would prohibit even a 17-year old lifeguard from swimming alone), a less restrictive rule might be to require those without swimming skills to be accompanied by someone who can swim, without regard to age.  Maintaining sanitary conditions is also an important goal.  Instead of requiring all children under 3 years of age to wear a swim diaper, you might require all persons who are not toilet trained or incontinent to wear a tight fitting protective covering or swim diaper.

If you have pool rules, a review by legal counsel is recommended.  Let us know if we can help