The Fair Housing Act prohibits discrimination in housing rental or conditions based upon protected classes, such as race, sex, religion, and, importantly, familial status. In assessing whether a housing provider discriminates based upon “familial status”, courts and the U.S. Department of Housing and Urban Development (“HUD”) look at whether families with children are treated differently than other residents. Policies that are specifically directed to children will be scrutinized to determine if the policy furthers a compelling goal, such as safety, in a manner that is the least restrictive on the families. Policies that are subject to this scrutiny include policies that restrict the number of occupants per apartment, and policies that impose restrictions on children’s use of communal amenities, such as pools, fitness centers, and club houses. For example, Courts and HUD have uniformly held that pool policies that require children be supervised by a parent or guardian while swimming in the pool are violative of the Fair Housing Act.
Policies that relate only to children should be narrowly tailored to ensure that they are necessary to serve a compelling interest. Additionally, all policies should be reviewed to ensure that they are not discriminating against families.
