Like any other public facility, aquatics centers and waterparks attract a large variety of people from many walks of life. Most people keep to themselves and don’t intentionally strive to aggravate the other patrons, but staffers may occasionally find themselves having to deal with some guests whose very presence makes others uncomfortable.
The Washington Post reported that a man with a number of tattoos, including a swastika, an upside-down cross, and a “666” was recently escorted out of a public pool. According to the incident report, the man entered the Rumsey Aquatic Center on Capitol Hill and had been using the pool for the first 30 minutes of his visit. He then spent the next hour and a half sitting by the pool charging his phone.
A lifeguard attempted to speak to the man after pool patrons told guard that they objected to the man’s presence. The District’s Department of Parks and Recreation noted that the man then “became irate, repeatedly and aggressively using offensive language toward the lifeguard.”
There was no physical confrontation, and the man was not arrested, but he was asked to leave due to “offensive language and inappropriate behavior,” according to authorities.
Aquatics personnel don’t typically have the right to remove people simply for having tattoos that others find offensive. Tattoos generally are considered protected under the First Amendment, said Shawn DeRosa, attorney and owner of DeRosa Aquatic Consulting. The Amendment applies to government-owned or -managed facilities, and it would be difficult to legally restrict access to someone based on any tattoo that may be displayed at a municipally owned aquatics facility — provided the tattoo is not considered obscene or pornographic (e.g. those depicting sexual activity), he says.
So how can your staff strike a balance between keeping guests comfortable and avoiding lawsuits for First Amendment rights violations?
“A best practice…would be to treat the customer with the offensive tattoo like any other customer,” DeRosa says. “This includes allowing the customer to swim while also listening with empathy to anyone offended by the tattoo.”
It would be appropriate for a manager to reiterate to customers who find the tattoo offensive that the municipality’s legal obligation is to allow equal access to facilities to all people, he says.
Municipalities are, however, generally able to enforce rules of conduct, DeRosa said. If a patron uses profane, offensive or threatening language that’s disruptive to other patrons, he or she may be subject to removal from the facility for conduct violations.
But privately owned facilities are a different matter entirely. They’re not governed by the First Amendment and thus can set their own policies and procedures for addressing offensive tattoos.
But no matter if your facility is public or private, DeRosa recommends drafting a response protocol so every staff member is aware of the appropriate steps to take in any given situation regarding offensive body art or anything else that might offend other patrons (baseball hats, clothing, etc…). When every situation is handled the same way, the threat of discriminatory accusations will be reduced.
If you’re starting your response plan from scratch, DeRosa recommends consulting legal counsel just to make sure your policies and procedures fall within the confines of the law and won’t land you in court.
