A Case Regarding Discrimination Against Familial Status and Enforcing Policies
On September 15, 2021, the court entered a consent order in United States v. Hideaway Village Community Management Association et al. (E.D. Tenn.). On July 9, 2021, the United States filed the Fair Housing Act complaint and proposed consent order. The complaint alleges that the defendants discriminated on the basis of familial status by adopting and enforcing policies and practices that prohibited children from using the community pool without adult supervision. The consent order requires the defendants to pay $10,000 in monetary damages to the HUD complainants, attend fair housing training, and submit to other standard injunctive relief. This case was referred to the Division after the Department of Housing and Urban Development (HUD) received a complaint, conducted an investigation, and issued a charge of discrimination.
Case Open Date: Friday, July 9, 2021
Case Name: United States v. Hideaway Village (E.D. Tenn.)
Topic: Civil Rights
3:21-CV-00250; Department of Justice; DOJ; Fair Housing Act; FHA; Hideaway Village Community Management Association; Eastern District of Tennessee; rental; community pool; familial status; children
Industry Code: None
Component: Civil Rights Division
Civil Rights – Housing and Civil Enforcement Section
United States v. Hideaway Village (E.D. Tenn.)
Proposed Consent Order – United States v. Hideaway Village (E.D. Tenn.)
Consent Order – United States v. Hideaway Village Community Management Association (E. D. Tenn.)
This case involved a single-family home community overseen by a homeowners association. Like many residents who live in a neighborhood with a community pool, the Plaintiffs, in this case, desired for their children, who were 11 and 14 during the relevant time period, to be able to use the pool at any time. Case documents note that both children were proficient swimmers. However, the HOA’s policy required adult supervision for any minor using the pool or pool area. In Tennessee, this included children up to the age of 17.
Some housing providers may find this result confusing, as it is common for multi-family housing owners to enforce supervision policies, particularly at the pool. It is also common to require supervision for children who are 14 years of age or younger, which would have covered both children in this case. So why did the Department of Justice allege that this HOA violated the Fair Housing Act for requiring adult supervision?
The issue here is that there was no attempt to narrowly tailor the policy in order to achieve a legitimate business purpose. Presumably, that business purpose is the safety of the residents; however, there is not a strong argument for requiring adult supervision for a 16 or 17-year-old. Notably, in the state of Tennessee, where this property is located, a minor can be certified as a lifeguard at the age of 15. There is also no state or local law that would have mandated supervision for children of a certain age for a pool amenity in this type of community. (Multi-family properties may be subject to different state laws regarding pool use. There are also different premises liability concerns for HOAs versus owners/agents of multifamily properties.) Should a 5-year-old be able to use the pool without supervision? Certainly not, but again, the policy at issue restricted all minors up to 17 years. HUD also found it problematic that the HOA allegedly did not take into consideration the children’s swimming ability, and did not allow the Plaintiffs to sign a waiver when they offered to.
Ultimately, the DOJ argued that this stringent policy hindered the Plaintiff’s ability to fully use and enjoy their residence and unreasonably restricted minors’ use of the community pool. This does not mean that owners/agents of multifamily communities cannot implement and enforce supervision policies for their pool or other amenity spaces. However, housing providers should be aware that if their policy(ies) are challenged, they must be able to cite a legitimate business purpose for the restriction and the policy should be reasonable in terms of the specific age restriction.
Given the many things that need to be considered when creating your properties’ policies, consulting a fair housing attorney continues to be a best practice.