Add swim diapers to the list of issues that can get turned into a federal case.
A Florida family is suing their condo board over what they say is a rule barring children from using the community pool while wearing swim diapers.
Swim diapers are a snug-fitting lightweight alternative to disposable or cloth diapers, which become heavy like anchors when wet.
According to the website SwimOutlet.com, swim diapers are “meant to be used only in the pool or ocean to make sure that your little one’s bum is covered and contained.”
But if banning them in a community pool prevents a child from using that pool, swim diapers can also become a symbol of the fight against discrimination.
A federal lawsuit filed Monday in West Palm Beach, Florida, names as plaintiffs grandparents Jack Yeager and Simone Yeager, owners of a home in Hunters Run Country Club in Boynton Beach, their son David Yeager and his wife Nicole Fisher.
The suit describes the following series of events:
David and Nicole were visiting the grandparents in December 2018 when they brought their then-19-month-old daughter to the main clubhouse swimming pool.
Supervised by her parents and wearing a swim diaper, the child placed her feet in the clubhouse pool.
A Hunters Run employee approached the parents and demanded that the child be removed from the clubhouse pool. Children in swim diapers, the employee said, are only allowed to use the “kiddie pool.”
A Hunters Run board member confirmed that children wearing swim diapers had been removed from the pool previously, the suit states.
The suit claims that Hunters Run violated anti-discrimination ordinances in Palm Beach County as well as the federal Fair Housing Act, which bars discrimination against families with children under 18.
“Hunters Run’s rules pertaining to the clubhouse pool have a disparate and unreasonable impact on children,” the suit claims. Banning children in swim diapers from using the clubhouse pool is also “unreasonable” and “not motivated by legitimate concerns for health and safety reasons,” it adds.
The lawsuit seeks monetary damages, attorneys costs, a finding that a discriminatory practice occurred, and an order barring Hunters Run from enforcing the ban in the future.
It stems from a complaint filed with the Palm Beach County Office of Equal Opportunity. Pamela Guerrier, director of the office, said she could not discuss pending litigation.
The Yeagers’ attorney also declined to discuss the case, and the general manager of Hunters Run did not return a phone call to his office on Tuesday.
Typically, discrimination lawsuits move forward after a local, state or federal civil rights investigative agency determines that a court is likely to agree that discrimination occurred.
Discrimination based on familial — or family — status is a legal landmine that multifamily housing developments often struggle to avoid, said attorneys for the firm Becker & Poliakoff, which specializes in issues involving community associations.
“It’s common for us to tell clients about this sort of issue,” said David Muller, who practices community association law in the firm’s Sarasota office. “A lot of times they say, ‘I really have to be concerned about this?’ And we say, ‘It’s very real.’”
His colleague JoAnn Burnett, who specializes in fair housing issues at the firm’s Fort Lauderdale office, said associations and landlords “need to tailor their rules to find the least restrictive means to accomplish whatever they are seeking to accomplish.”
She added, “If the goal is to have a swimming pool that’s free of feces or urine, the least restrictive way to do that is to require someone who is incontinent or not trained, to wear waterproof undergarments or swim diapers.”
Other examples of potential familial discrimination would include barring child under 12 from using a community pool, prohibiting children under 16 from using an exercise room, or setting an occupancy limit that would be breached when a mother gives birth, she said.
But there is one way that children can be barred from using any community facility, she said, with or without swim diapers and regardless of age:
Build a 55-and-older community. They’re permitted to exclude everyone else.