Do Your Fitness Center Rules Discriminate Against Children and the Disabled?

Overly restrictive safety rules may have unintended discriminatory effects.

 

 

The fitness center, typically made up of a full gym, Jacuzzi, pool, sauna, steam room, tanning salon, weight room, or some combination thereof, has become a critical amenity for renters across the country. In a 2019 RENTCafe survey of over 3,000 rental prospects actively looking for apartments, nearly half (47%) said they wanted to rent from a building with a gym or fitness center. The physical fitness trend has become so strong that many renters are willing to pay extra for communities with gym facilities, up to $300 per month, according to one study.

Landlords and developers have heard the message loud and clear. Thus, 92 percent of new multifamily rental buildings offer fitness facilities, as opposed to only 30 percent back in the 1970s. Today, roughly 67 percent of all large U.S. apartment buildings, new and old, have a fitness center somewhere on the premises.   

Of course, every silver lining has its cloud. With fitness facilities, the downside is risk of injury and liability. Use of fitness facilities and equipment sends nearly half a million Americans to hospital emergency rooms each year. According to studies, roughly 18 percent (nearly 1 in 5) of gym users suffer injury in a given year, with injuries ranging from bone fractures to severe bruises, cuts, concussions, and muscle sprains. Many victims sue the owner of the exercise equipment for their injuries, including the landlord when the incident occurs in an apartment community fitness center.

Misuse of the equipment is a frequent cause of fitness center injury, especially in the approximately 16,500 cases involving injury to children. That’s why strict safety rules are an absolute must for any apartment community that offers fitness facilities. The problem is that safety rules may also generate fair housing complaints. What makes this liability risk so pernicious is that safety rules may have unintended discriminatory effects on those they’re designed to protect, particularly families with children and the disabled.

Accordingly, this month’s lesson is dedicated to helping you avoid inadvertently discriminatory fitness center rules. First, we’ll explain how what looks like such a perfectly neutral and legitimate rule, such as, “children may not use the fitness center without parental supervision,” can result in fair housing liability. Next, we’ll help you stay out of trouble by outlining eight rules to follow to ensure your fitness center rules are nondiscriminatory. At the end of the lesson, you can take the Coach’s Quiz to apply the lessons to real-life scenarios that you’re likely to face at your own community.

DEEP DIVE

Which Fitness Equipment Do Renters Want Most?

A 2022 National Multifamily Housing Council/Grace Hill Renter Preferences Survey Report asked 221,000 renters nationwide which types of fitness equipment they want. The three items most often listed as “important or very important”: 

• Cardio exercise machines, such as treadmills, ellipticals, or bikes (79%);
• Free weights, including dumbbells and barbells (76%); and
• Weight machines, such as those produced by Nautilus or Precor (69%). 

 

WHAT DOES THE LAW SAY?

Section 3604(b) of the federal Fair Housing Act (FHA) bans discrimination “against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” The principal risk of fitness center rules is discrimination against families with children.  

Regulations from the agency charged with enforcing the FHA, the U.S. Department of Housing and Urban Development (HUD), say it’s illegal to “deny or limit services or facilities in connection with the sale or rental of a dwelling” on the basis of family status [24 C.F.R. §100.65(a)]. Prohibited actions include “[l]imiting the use of privileges, services or facilities associated with a dwelling because of . . . familial status, . . . of an owner, tenant or a person associated with him or her” [24 C.F.R. §100.65(b)(4)].

The problem is that just about any kind of safety or sanitation rule regulating children’s use of fitness centers that you impose is apt to have at least some restrictive impact, even if discrimination is the furthest thing from your mind. Not surprisingly, exclusion of children from amenities has become a frequent source of familial status discrimination litigation. While most of the cases involve community swimming pools, the principles involved are equally relevant for fitness centers, recreational rooms, and other common use amenities.

HUD Memo Allows for Reasonable Health & Safety Rules. The first thing you and your staff need to understand is that sound safety, health, and sanitation rules for fitness centers are not only permitted but perhaps even required under other laws. In 1992, four years after Congress added family status to the list of FHA protected grounds, HUD’s general counsel issued an internal memo to the agency’s attorneys to clarify that the law doesn’t ban housing providers from imposing “reasonable health and safety rules designed to protect minor children in their use of facilities associated with the dwellings.” If someone files a complaint alleging that rules limit the ability of families with children to use the pool or other common facilities, the memo instructs HUD lawyers to consider the facts of the specific case, including:

• The rationale for the rules;
• The degree of limitations the rules place on families with children;
• Whether the rules are mandated pursuant by a state or local requirement; and
• If so, whether those state or local requirements are reasonable.

These principles are also the basis for ensuring that your own fitness center rules are legitimate and nondiscriminatory.

Final Note: In addition to family status discrimination, fitness centers bring the disability protections of the FHA into play, as we’ll discuss later.   

8 RULES FOR PREVENTING FITNESS CENTER DISCRIMINATION

Let’s talk about how all of these laws and principles play out in real life. To cut to the chase, there are eight things landlords that offer on-site fitness facilities must do to manage fair housing liability risks.

Rule #1: Ensure that Fitness Center Rules Are Reasonable to Promote Safety

The first thing enforcement officials will consider in a discriminatory fitness center rules complaint is the landlord’s rationale for the rules. The question: Do the restrictions imposed on families and/or disabled persons serve a legitimate purpose? The good news is that safety, health, and sanitation are universally recognized as legitimate, nondiscriminatory goals. The bad news is that simply having legitimate purposes isn’t enough; you must also demonstrate that the rule, policy, or practice you implement is a reasonable way to accomplish that purpose.

Compliance Strategy: Recognize that reasonableness must be based on objective criteria. Examples of objective sources that may help you justify fitness center health and safety rules:

State or Local Laws: Fitness center rules will be easier to defend if they’re based on requirements under health, building, fire, sanitation, or other state or municipal codes—for example, a local law that bans children from using certain kinds of fitness equipment without adult supervision. Just keep in mind that local laws are no guarantee and that HUD, the U.S. Department of Justice, and fair housing advocacy organizations may still challenge them as unreasonable; and if a local law is unreasonable, an apartment community policy designed to comply with it will also be suspect.

Manufacturers’ Warnings & Guidelines: Manufacturers and distributors of treadmills, elliptical machines, saunas, and the like often advise that their products aren’t intended for and shouldn’t be used by people under a certain age or who have certain medical conditions. You should be mindful of these warnings and guidelines and consider incorporating them into your own fitness center rules. This should provide a measure of justification in case somebody later claims the rule is discriminatory.

Industry Standards: While not legally binding, attorneys suggest that industry standards may offer guidance on what fitness center rules are reasonable. Consider not only the rules used by other apartment communities but also local health clubs and gyms that provide the same equipment and facilities.

Rule #2: Don’t Bar Children or the Disabled from Fitness Center Use

To survive fair housing scrutiny, fitness center rules must also be as minimally restrictive as possible. How you frame the rule is of crucial importance. A rule that clearly serves safety, health, or sanitation will still be illegal if it’s overly broad and there are less restrictive ways to accomplish the purpose.

Compliance Strategy: The most obvious example of an overly broad rule to avoid is banning protected groups from using the facilities to ensure they don’t injure themselves. Keep in mind that even if not expressly stated, bans can be implemented via actions.

Example: Tenants of a Florida community had to get special key fobs from the landlord to access the fitness center and other common areas and amenities. The landlord issued the key fobs only to adult tenants. Three families with teenage kids under age 18 complained to HUD of family status discrimination. HUD took the case to federal court. Facing the risk of trial, the landlord agreed to shell out $260,000 in damages and penalties to settle [United States v. Concord Court at Creative Village Partners, (M.D. Fla.), 2022].  

Rule #3: Be Wary of “Adult Supervision” Rules

Adult supervision requirements are a leading source of common amenities-related family discrimination complaints, particularly in the context of swimming pools. The safety rationale for such rules is clear. Swimming without adult supervision is the leading cause of drowning deaths for young children. As HUD acknowledges in its 1992 Memo, in contrast to full or partial bans on children’s use, “requiring a responsible adult to supervise young children and provide written designation of an adult supervisor are policies which appear more tailored to protect legitimate health and safety interests and appear less problematic.”

Of course, the same reasoning applies to fitness centers. Practical impact: The legality of adult supervision rules depends on the context and how they’re framed and applied. Stated differently, you may be able to require adult supervision as long as the rule is narrow and no more restrictive than it has to be to accomplish the safety purpose. But a rule that’s broader than it has to be is a recipe for trouble.

Example: A large Missouri landlord tried to evict a tenant for letting her 16-year-old daughter use the on-site fitness center, computer room, and movie theater in violation of community rules banning access to those amenities by children under age 18 unless accompanied by an adult tenant. HUD found reasonable cause to believe that family status discrimination had occurred, and the case went to federal court, resulting in a $16,000 settlement against the landlord [United States v. Orchard Village, LLC, et al. (E.D. Mo.) (2022)]. 

Attorneys tell the Coach that the Orchard Village case might have gone the other way had the adult supervision rule been limited to the fitness center. However, applying a rule designed to ensure safety to non-safety-sensitive settings like the movie center and computer room made it unreasonably broad.

Compliance Strategy: The starting point is to recognize and be able to articulate the purpose of an adult supervision rule—namely,  to prevent people who are at risk of injury from using the fitness room equipment unless they’re supervised by somebody capable of ensuring their safety. This purpose need not be phrased in terms of a person’s age. Thus, using a treadmill poses potential danger not just to young children but anybody who lacks the knowledge, experience, or ability to use such equipment safely. Once you introduce the children and parental dimensions, you make the rule problematic on fair housing grounds. The best illustration of this comes from swimming pool cases.  

Example: The parents of three young children sued their California landlord for adopting a rule stating that “Children under the age of 18 are not allowed in the pool or pool area at any time unless accompanied by their parents or legal guardian.” Too restrictive, said the federal court. A “prohibition on unsupervised swimming which would prevent even a 17-year-old certified lifeguard from swimming unaccompanied is overly restrictive,” reasoned the court. While recognizing “the inherent dangers of unsupervised swimming,” the court concluded that requiring that a parent or legal guardian to supervise “transforms this rule” from a legitimate safety precaution to an unjustified restriction on children and their families” [Iniestra v. Cliff Warren Investments, Inc., C.D. Cal. 2012, 886 F.Supp.2d 1161].

Bottom Line: The least restrictive and most nondiscriminatory way to accomplish the safety objective of the adult supervision rule is to frame the rule in terms of fitness equipment use proficiency and the ability to supervise responsibly. Potential options:

• Require supervision of not just children of certain ages but any person who can’t demonstrate proficiency in the use of the equipment;
• If you do use age requirements, look at local laws, equipment manufacturers’ guidelines, and industry practices in determining a suitable age restriction; and
• Require all would-be fitness center users—and not just children—to pass a proficiency test administered by a competent trainer or fitness professional.

Also be careful about who the rule says must supervise the non-proficient. Don’t use the words “parent” or “guardian.” “Adult,” too, may be problematic to the extent it excludes 16- and 17-year-olds with fitness training.

Rule #4: Restrict Behavior, Not People

All agree that landlords have a legitimate interest in regulating how people behave in fitness centers and other common areas of the community. In addition to posing health, safety, and property damage hazards, unruly behavior can create disturbances that interfere with others’ enjoyment of those facilities and areas. Once again, though, the problem isn’t a rule’s intention but how you phrase and apply it.

Example: In April 2018, the owner of a 44-unit California apartment community was fined $25,000 for implementing house rules that discriminated against families with children, such as banning children from riding bicycles, using skateboards, or playing with Hot Wheels, wagons, or balls in pools and other common areas. While banning skateboards and other restrictions in pool areas seemed reasonable on its face, the rules didn’t pass muster because they applied only to children and there were no corresponding rules banning specific kinds of behaviors by adults in these areas [California Dept. of Fair Employment & Housing, April 10, 2018].

Compliance Strategy: Target behavior, not the people you think are likely to engage in it. Appropriate behavior rules for fitness centers may include a ban on:

• Running;
• Use of profanity or other offensive language;
• Being unreasonably loud or noisy;
• Horseplay or playing with the equipment;
• Not wiping off the equipment after use; and
• Allowing nonresidents to use the facilities without permission.

Also be careful with rules regulating toys:

• Wrong: “No children’s toys are permitted in the fitness area”;
• Right: “No bikes, trikes, toys, stuffed animals, balls, water pistols, bulky bags or knapsacks, or similar items are permitted in the fitness room.”

Rule #5: Prominently Post Fitness Center Rules and the Basis for Them

Fitness center rules may be necessary to provide important health and safety information that users should be aware of before using the facilities—for example, a warning that use of the Jacuzzi may be dangerous for pregnant women. Failure to provide such warnings exposes you to risk of liability for, among other things, negligence under tort laws.  

Compliance Strategy: Put your fitness center rules in writing and post them prominently where people are likely to see them—for example, on both sides of the fitness center door. Post rules about specific equipment or amenities, such as the Jacuzzi or sauna, near the item to which they relate. Keep the rules short and to the point, attorneys advise. They also suggest adding language to explain that the sole purpose of the rules is to ensure the health and safety of all users and that they’re based on objective criteria, such as equipment manufacturers’ instructions and guidelines.

Rule #6: Ensure Fitness Center Is Accessible to the Disabled

So far, this analysis has focused on preventing discrimination against families with children. But fitness centers may also have implications under fair housing laws protecting the disabled. The first issue is accessibility. Section 3604(f)(3)(C)(i) of the FHA defines prohibited disability discrimination as including failure to ensure that the design and construction of “the public use and common use portions” of certain new multifamily dwellings “are readily accessible to and usable by handicapped persons.”

To the extent your property’s fitness facilities are open to the public and not just to tenants, fitness centers may also have to comply with the Americans with Disabilities Act (ADA) accessibility rules. 

Compliance Strategy: While a detailed discussion of accessibility requirements is beyond the scope of this lesson, landlords need to be aware that they’re in play. If your community is considering adding a new or remodeling an existing fitness center, your architect or interior designer must design the space so that it meets FHA and ADA standards (as well as those under Section 504 of the Rehabilitation Act if your community participates in federally assisted housing programs). Otherwise, you run the risk of significant penalties.

Example: The U.S. government sued the owner of several communities in Las Vegas for failing to ensure that fitness centers, pool areas, and other common areas of the properties were accessible to disabled tenants, as required by the FHA and ADA. The owner eventually settled the lawsuit by agreeing to invest over $1 million to retrofit the areas and make them accessible [U.S. v. Camden Property Trust, (U.S. Dist. Ct., Nevada), 2001].

DEEP DIVE

FHA Accessibility Guidelines

Accessibility is a complex issue that deals mainly with how multifamily buildings and their common areas and facilities are designed and constructed. According to guidelines that HUD published in 1991, the FHA requires all newly constructed multifamily dwellings of four or more units intended for first occupancy after March 13, 1991, to have:

1. An accessible entrance on an accessible route;

2. Accessible common and public use areas;

3. Doors sufficiently wide to accommodate wheelchairs;

4. Accessible routes into and through each dwelling;

5. Light switches, electrical outlets, and thermostats in accessible locations;

6. Reinforcements in bathroom walls to accommodate grab bar installations; and

7. “Usable” kitchens and bathrooms configured so a wheelchair can maneuver about the space.

Rule #7: Be Prepared to Make Reasonable Accommodations to Fitness Center Rules

Section 3604(f)(3)(B) of the FHA makes it illegal to refuse “to make reasonable accommodations in rules, policies, practices, or services when such accommodations may be necessary to afford a person with a disability the equal opportunity to use and enjoy a dwelling.” Such accommodations include changes, exceptions, or adjustments to fitness center rules and policies. Example: Making an exception to your fitness center’s “no pets” policy to allow disabled tenants to bring their assistance animals into the facility.

Compliance Strategy: You need only make accommodations that you determine are “reasonable.” According to HUD, requested accommodations aren’t reasonable to the extent they:

• Would cause landlords to incur an undue financial and administrative burden;
• Would cause a basic or fundamental change in the nature of the housing program available;
• Would cause harm or damage to others; or
• Aren’t technologically possible.

Rule #8: Be Prepared to Make Reasonable Modifications to the Fitness Center

Section 3604(f)(3)(A) of the FHA also makes it illegal for a landlord to refuse to allow “reasonable modifications of existing premises.” A reasonable modification is a structural change made to a property’s interior or exterior that’s necessary for an individual with a disability to fully use and enjoy the facility, such as widening the doorways or installing an access ramp in front of the fitness center to enable a wheelchair to enter and exit the space. Unlike reasonable accommodations, the person with a disability and not the landlord is responsible for the financial costs of reasonable modifications.

Compliance Strategy: The alterations you may need to make to comply will depend on your situation. For example, making $10,000 worth of structural changes to widen a fitness center doorway may be reasonable for a highly profitable community with hundreds of units, but unreasonable for a smaller community with a tiny fitness room. If you determine that you can’t make a requested fitness center modification, whether for financial or structural reasons, document all the steps you took to reach this decision in case you’re second guessed later.