Avoiding Discrimination Complaints families With Children
Both California and federal laws prohibit discrimination against certain "protected groups". Discrimination is prohibited if it is based on the race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability of the person. I have found that one of the most commonly misunderstood areas of discrimination is that involving "familial status". In basic terms, "familial status" refers to discrimination against minor children (individuals under the age of 18).

All too often, community associations adopt rules and regulations which are well-intentioned but are actually illegal forms of discrimination against children. Do the following rules sound familiar? "No one under age 18 may use the pool unless supervised by an adult." "No one under age 18 may use the sauna." "Children under age 14 are prohibited from using the spa." "Children under age 18 may only swim in the family pool." "Children may not skate, skateboard or ride bicycles in the common area."

If the foregoing rules sound familiar, your association is at risk of having a discrimination complaint filed against it which could end in the payment of damages and civil penalties amounting to several thousand dollars.

But, you protest, these rules were based on valid safety concerns and to protect the peace and quiet enjoyment of other residents. Nonetheless, your concerns are not viewed by governmental agencies, administrative law judges, and federal court judges as legitimate reasons for discriminating against children. Let's look at some Florida and California cases which were prosecuted successfully by the U.S. Department of Housing and Urban Development ("HUD").

In HUD v. Paradise Gardens, a Florida administrative law judge ruled that a community association's rules limiting swimming pool use by children had no legitimate safety purpose and therefore violated the familial status provisions of the Federal Fair Housing Act. Paradise Gardens in Margate, Florida, had pool regulations which barred children under the age of 5 from the pool altogether and restricted 5 to 16 year olds to swimming between 11:00 a.m. and 2:00 p.m. The administrative law judge ruled that the time restrictions were actually intended to keep children from the pool completely because the hours available to them were when they were in school, or during summer vacation, at the time of most danger from the hot Florida sun. The judge also rejected health and safety arguments for barring younger children from the pool because expert testimony established that the sanitariness of a pool was unrelated to the age of the swimmers and that close parental supervision would assure the safety of children of any age. The association and three individuals were ordered to pay damages for emotional distress, humiliation and inconvenience to two complaining families $4,000 for one family and $3,500 for the other family. In addition, the judge assessed civil penalties of $3,000 against the association and $100 each against two of its spokespersons.

Federal judges in California have been equally protective of the rights of families with children. In the case of Llanos v. Coelho, a federal district judge held that an apartment complex's rules restricting children from swimming in several complex pools and from playing in "adult" areas violated the Federal Fair Housing Act. This case arose in the Del Monte Pines apartment complex in Fresno, California where a single mother with a baby daughter moved into the "adult" section of the complex. At the time she moved in, the Del Monte Pines was divided into a family section and an adult section. The complex had six swimming pools, of which only two were open to children. Children were also prohibited from riding bicycles, skating, riding skateboards, or playing in adult areas. The federal district judge concluded that the apartment complex's rules restricting children's access to certain facilities were discriminatory on their face. The judge rejected the apartment complex's arguments that the rules were required by a reasonable business reason and that they were justified by safety concerns for unsupervised children. He said that the prohibition on children playing in adult areas "effectively prohibit[ed] children from accessing a large area of the complex" and discriminated against families based on familial status.

An apartment complex in Torrance, California, discovered too late that its rule prohibiting children from playing in the building area at any time violated the Fair Housing Act. In the case of Fair Housing Congress v. Weber, a tenant and her minor son lived at the Vista De Anza Apartments for more than four years until they moved out after receiving an eviction notice. During the time they lived there, the apartment managers told the minor child not to splash in the swimming pool, bounce his basketball, or ride his bicycle. An apartment rule stated that children were not "allowed to play or run around inside the building area at any time because of disturbance to other tenants or damage the building property." The federal district judge held that the apartment complex's rule that prohibited children from playing in the building area was discriminatory on its face and violated the Fair Housing Act. The apartment complex maintained that the rule was justified because it accomplished the goals of insuring the children's safety and maintaining quiet. The judge found that these justifications were legitimate, but she concluded that the complex had not met its burden of showing that the rule was the least restrictive means of accomplishing these goals.

What can we learn from these cases? The first lesson to note is that the governmental entities charged with enforcing anti-discrimination laws take these types of complaints very seriously. The U.S. Department of Housing and Urban Development ("HUD") is charged with enforcing the Federal Fair Housing Act. HUD is assisted in its enforcement activities by the California Department of Fair Employment and Housing ("DFEH") which also enforces California's own anti-discrimination laws such as Government Code Section 12955, et seq. If a complaint is filed, one or both of these agencies will investigate the complaint and may choose to file charges against the association and its representatives, especially if efforts at "conciliation" fail to resolve the matter.

The second lesson to take from these cases is that even well intentioned rules based on legitimate safety and peaceful enjoyment concerns are subject to attack. In each of these cases, the community association or apartment complex argued that its rules were enforceable and legal because they were based on legitimate safety and peaceful enjoyment concerns. This argument was rejected in all three cases. Therefore, any rule which appears on its face to discriminate against children is potentially subject to attack. The only exception which appears to be recognized by both HUD and DFEH is found in Title 22, Section 65539 of the California Administrative Code which requires the posting of a sign in pool areas where no lifeguard is present. The sign must state in clearly legible letters at least 10.2 centimeters (4") high: "Warning No Lifeguard on Duty. Children Under the Age of 14 Should Not Use Pool Without An Adult In Attendance." Community associations which adopt this rule and post the proper sign should not be subject to discrimination complaints. Pleasenote, that the language provides that children under the age of 14 "should not" use the pool without an adult in attendance. This is advisory language only. Therefore, it would be improper for the rule to read"Children under the age of 14 may not use pool without an adult in attendance."

The third and final lesson to take from these cases is that administrative law judges and federal district judges both take a strict approach against rules which appear on their face to discriminate against children. Rules which are in fact found to be discriminatory by an administrative law judge or federal court judge may subject both the association and the individuals trying to enforce the rule to liability in the form of damages and civil penalties. Associations are well advised to consider whether their rules and regulations (and other governing documents) may contain discriminatory provisions.

In light of the foregoing, I recommend that all governing documents be reviewed for potentially discriminatory provisions. This recommendation applies especially to provisions affecting children and their activities because these types of provisions appear to be some of the most commonly misunderstood forms of discrimination. I will be pleased to assist your association in such a review if desired.