Both the Colorado and Federal fair housing laws prohibit discrimination against any person in their use of a dwelling based on their “familial status”. Essentially, discrimination based on familial status is discrimination against people with children. The fair housing laws and regulations prohibit rules that have the effect of restricting a resident’s use of the recreational facilities associated with a dwelling based on their familial status.
A quick glance at most associations’ rules regarding swimming pools and exercise rooms will likely uncover at least one rule prohibited by the fair housing laws. These include certain rules based on age, restrictions against children wearing diapers in the pool, adult-only pools, and adult-only hours or swim times. These rules can be deemed discriminatory as they appear to discriminate against families with children by not providing equal access to the swimming pool or exercise room to all residents.
That being said, rules that are based on health or safety concerns have been held to be reasonable and non-discriminatory. The following are some examples of good and not-so-good rules:
Instead of this: Children under the age of 16 must be accompanied by an adult at all times while using the pool.
Use this: Any person who does not have sufficient swimming skills to swim independently must be accompanied by a person with such skills.
Instead of this: All non-potty trained children must wear swim diapers while in the pool.
Use this: Any person who is unable to control his or her bodily functions must wear waterproof pants or swim trunks while in the pool.
Instead of: No baby strollers, walkers or playpens are allowed in the pool area.
Use this: Only lounge chairs are allowed in the pool area.
Instead of: No children under the age of 16 may use the exercise equipment.
Use this: All persons using the exercise equipment must be knowledgeable on the proper use of the equipment and physically able to properly use the equipment.
In looking at any pool or exercise room rules, it is important to consider whether the rule, in its application will single out those with children, and whether there are less restrictive and more age-neutral ways to achieve the purpose.
As you can see from the above examples, it is easy to violate the fair housing laws when it comes to familial status, even though the association believes it is acting prudently and in the best interests of all its members. It is important and helpful to have legal counsel review pool and/or exercise room rules for compliance with the federal and state fair housing laws. Once an association realizes that one or more of its rules is in violation of these laws, the association should take prompt action to remedy the problem.
For a more in-depth discussion on discrimination, see our article in Related Links.