Avoiding Inadvertent Discrimination When Advertising Your Community

WHAT DOES THE LAW SAY?

Section 804(c) of the federal Fair Housing Act (FHA) makes it illegal “[t]o make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin.” Notice that the rule covers not just landlords who make discriminatory statements in ads but also those who publish them.

The U.S. Department of Housing and Urban Development (HUD) interprets the prohibition very broadly as applying to all kinds of ads, not just newspaper ads. Moreover, the offense isn’t discriminatory advertising but making discriminatory statements, which includes communications that you may not normally think of as advertising, such as:

• Spoken, written, and online statements—including words, phrases, pictures, symbols, and other graphic images—that send the message that housing isn’t available to particular groups because of race, color, religion, sex, handicap, familial status, or national origin (which we’ll refer to collectively as “protected characteristics”);
• Expressing to leasing agents, employees, prospects, or any other person a preference for or against any renter because of the renter’s protected characteristic; and/or
• Selecting media or locations for advertising that deny particular segments of the housing market information about housing opportunities based on a protected characteristic.

Example: “Loft Apartments. . . . For Adults 21 & Over.” A family with a young child sued the owner of a Pennsylvania luxury community that placed ads including this language in local newspapers. HUD joined the lawsuit. The federal court found the owner liable for discriminatory advertising and ordered it to pay $35,000 in damages [U.S. v. Joyce, 2010].

It’s Not What You Mean But What You Say

Unlike with most other forms of fair housing violations, liability for making discriminatory statements doesn’t require proof of discriminatory intent. What matters is not what you meant but whether the statement you actually made would suggest a preference to an “ordinary reader or listener.” Thus, innocent intentions are no defense to a violation.

Example: The Massachusetts landlord probably acted with the best of intentions in running a Craigslist ad stating that an apartment was “not deleaded, therefore it cannot be rented to families with children under six years old.” But whatever the landlord’s intentions were, the ad clearly communicated the message that the apartment was off limits to families with children. Result: The landlord had to shell out over $38,000 in damages [Massachusetts Attorney General’s Office, May 2013].

You also need to recognize that exclusion can take the form of not only discouraging but also encouraging groups of people. Thus, phrases like “ideal for singles” imply that married couples with children are unwelcome.

Beware of State Fair Housing Laws

Finally, keep in mind that federal requirements are just the baseline for compliance and that most states have adopted their own fair housing laws covering groups or characteristics that the FHA doesn’t list as protected, such as sexual orientation, gender identity, marital status, ancestry, age, military status, and source of income. Thus, for example, an ad that includes the phrase “No Section 8 vouchers” would violate the laws of states that ban discrimination on the basis of a person’s source of income.

7 RULES FOR AVOIDING DISCRIMINATORY ADVERTISING

The ban on making discriminatory statements applies to a broad range of advertising and marketing practices, but the basic rules don’t vary by medium. Stated differently, the formula for avoiding discrimination in traditional advertising is pretty much the same as it is for avoiding discrimination in internet advertising. Thus, HUD, fair housing groups, and victims continue to bring cases against landlords and publishers for discriminatory statements made in newspapers and other traditional media outlets.

Rule #1: Avoid Discriminatory Buzzwords

Landlords that use phrases like “Whites Only” or “No Wheelchairs” in their ads richly deserve the liability they incur. But unlike obscenity, people don’t intuitively recognize discriminatory advertising when they see it. If they did, the vast majority of landlords who do believe in fair housing principles and want to comply wouldn’t get into trouble because of their ads. Inadvertent liability is often the result of using certain buzzwords and phrases that send subtle messages of exclusion. They may include not only references to protected classes and characteristics but seemingly neutral words like “restricted,” “exclusive,” or “private.”

Descriptions of the neighborhood can also raise a red flag. In describing the community, stick to neutral terms, such as “desirable neighborhood” or “quiet streets,” and avoid words indicating which groups live in it.

Standard descriptions of a unit’s features that include otherwise taboo words, such as “walk-in closets” and “family room,” don’t violate fair housing law, as long as the advertisement doesn’t otherwise suggest a discriminatory preference, according to HUD. (See this table based on government guidelines from the State of Oklahoma.)

Rule #2: Market Property, Not People

The rule of thumb for avoiding discriminatory advertising is to market the property and its amenities, not the people you think should live in it. Vet every ad, slogan, and marketing piece you create with one question in mind: Will the prospects who look at this item feel welcome? In making this determination, set aside your own personal opinions and consider the view of the “ordinary reader or listener,” since this is the standard by which you’ll be judged if somebody files a fair housing complaint.

Compliance strategy: Because litigation is so expensive—even when you win—the primary goal should be to avoid it at all costs. Thus, if there’s even a question about whether ad language will cross the line, err on the side of caution by not including it.

Example: If it could have done things differently, an Ohio community would have probably chosen not to run an online ad suggesting that, “Our one bedroom apartments are a great bachelor pad for any single man looking to hook up.” The good news is that the community eventually won the lawsuit claiming that the ad discriminated on the basis of familial status and sex; the bad news is that it took the community over five years of litigation and tens if not hundreds of thousands in legal fees to ultimately prevail [Miami Valley Fair Housing Center, Inc. v. The Connor Group, December 2015].

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Exceptions Where Ads May Express Preferences

While the law generally bans statements that express a preference based on a protected characteristic, there are a few exceptions, including:

• Roommates: Ads stating a preference for members of a particular sex as a roommate in a shared-living arrangement;
• Senior housing: Ads excluding children in communities that qualify under the “housing for older persons” exception, which applies if:
  • HUD has determined the housing is specifically designed for and occupied by elderly persons under a federal, state, or local government program; or
  • The housing is occupied solely by persons 62 or older; or
  • It houses at least one person 55 or older in at least 80 percent of the occupied units, and adheres to a policy that demonstrates an intent to house persons who are 55 or older; and
• Accessible housing: Ads with information about the availability of accessible housing; and
• Affirmative advertising: Ads designed to attract persons to dwellings who would not ordinarily be expected to apply, when such efforts are part of an affirmative marketing program or undertaken to remedy the effects of prior discriminatory housing advertising or marketing.

Rule #3: Beware of Discriminatory Use of Human Models

Pay close attention to not just the words but the images contained in your ads and marketing materials. Be especially careful about using human models, whether via video, photograph, drawing, or other graphic techniques, to express preferences for or against different groups. The classic example is a picture or video that uses all white models to portray your residents. Whether you realize it or not, such an ad sends the message that people of color aren’t welcome in your community. Similarly, ads showing nothing but able-bodied people running, playing tennis, or engaging in other physical activities may send subtle exclusionary messages to persons with disabilities; failing to display kids may have the same effect on families with children.

Accordingly, HUD cautions that models used in display advertising campaigns “should be clearly definable as reasonably representing majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children.” If used, models should also portray persons in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, etc., HUD adds.

Landlords and their employees need to keep these principles in mind for not just professional shoots but handheld videos shot with a smartphone for posting to Facebook, Instagram, Zillow, or any other online site. There should be guidelines in place for vetting videos for potential fair housing risks before hitting the “send” button.   

Rule #4: Put the HUD EHO Logo in All Ads

There is one thing you should include in all of your advertising: the HUD equal housing opportunity (EHO) logotype, statement, or slogan. While not technically required under the FHA, these materials send the very opposite message conveyed by discriminatory ads, namely, that the property is available to all persons regardless of race, color, religion, sex, handicap, familial status, or national origin.

In addition to enhancing your reputation as an equal housing opportunity provider, including the logo may also serve to contradict any discriminatory messages your ads inadvertently send. One example is advertising for communities that have a religious name (such as “Roselawn Catholic Home”) or use of a religious symbol in an ad. According to HUD, these practices may indicate an illegal religious preference. But HUD also says that use of the religious name or symbol will be deemed acceptable if it’s paired with a disclaimer stating that the community doesn’t discriminate based on race, color, or any other characteristic protected under federal, state, or local law.

The logo examples here come from HUD’s fair housing advertising regulations that were officially rescinded as part of a large effort to eliminate advisory materials from official regulations, but which HUD still unofficially follows in implementing the law. The choice of logotype, statement, or slogan will vary depending on the type of media used (visual or auditory) and, in space advertising, the size of the advertisement. The rescinded regulations include a table for determining logo size in newspapers and other traditional print media:

For other ads, the EHO logo should be at least equal in size to the largest of the other logotypes; if no other logotypes are used, the type should be bold display face which is clearly visible.

Rule #5: Avoid Discriminatory Ad Placement  

Consider not just the content of your ads but where you place them. Explanation: Historically, landlords have been able to perpetuate segregation by deliberately advertising only in certain publications or outlets that minorities targeted for exclusion are known not to use. Examples include strategically placing billboard ads in predominately white neighborhoods and running newspaper ads in local publications read mostly by a white audience. The digital age and rise of websites that use sophisticated algorithms to target highly specific audiences have significantly increased the potential for landlords to engage in selective and manipulative ad placement strategies.

Of course, HUD and fair housing organizations are aware of these practices and scrutinize landlords’ marketing practices for evidence of discrimination.

HUD has also warned against relying exclusively on English-language media or media catering to the majority population in an area where non-English language or other minority media is also available.

Example: A group of 15 Latino residents sued the owners and operators of seven rental properties in Los Angeles for deliberately excluding Latinos by marketing newly vacated units primarily through websites directed at young, English-speaking, single, nondisabled people (such as Radpad, Hotpads, and Walk Score). The defendants denied the accusations and asked the federal court to toss the case without a trial. The court ruled that the residents had a legally valid claim and could take their case to trial [Martinez v. Optimus Props., LLC, March 2017].

Your best defense is a proactive strategy relying on the creation and implementation of a written marketing plan to ensure that your marketing campaign is as broad and inclusive as possible. Retain copies of the ads you place, along with detailed records of when and where you placed them. Documenting your efforts to reach a wide, diverse audience will help you defend yourself against claims of selective advertising; better yet, it may prevent such claims altogether.  

Coach’s Tip: One exception to the ban on selective ad placement allows for targeting a particular group as part of a broad, inclusive marketing campaign, provided that the landlord has a valid, nondiscriminatory reason for doing so. For example, it may be permissible to run ads in a Vietnamese language newspaper if large numbers of Vietnamese people settle into your community and surrounding area.

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Fair Housing & Facebook

In 2018, the National Fair Housing Alliance and other fair housing groups sued Facebook for “virtual redlining” by allowing housing advertisers to use its platform and lists of “excluded” groups to customize ads that families with children, women, and other protected classes wouldn’t be able to receive. The complaint also accused Facebook of giving housing advertisers the ability to exclude certain “interest” categories from receiving ads that are disability-based (such as people who are interested in disabled veterans or disabled parking permits) or national origin-based (such as people who are interested in English as a second language).

Facebook settled the suit in 2019 by agreeing to change its advertising platform. However, HUD wasn’t impressed with the solution and has filed its own lawsuit challenging Facebook’s advertising practices in federal court.

Meanwhile, a group of Facebook users have brought a class action against the social media giant contending that they were on the receiving end of housing advertisers’ discriminatory practices enabled by the use of the Facebook platform. In January 2021, a federal court rejected the claim for lack of specificity; however, the dismissal was “without prejudice.” Translation: The plaintiffs can still file an amended complaint.    

Rule #6: Keep Your Advertising Methods Consistent

Expansive campaigns targeting multiple markets can expose you to liability if your advertising methods are selective. So try to keep your campaigns consistent from market to market. For example, when using human models primarily in media that cater to one racial or national origin segment of the population, consider a complementary advertising campaign using models targeting other groups. Another example of selective marketing is using racially mixed models to advertise one property and not others. You also need to be careful when advertising in publications or other media directed at one particular sex or persons without children.

Rule #7: Beware of Discriminatory Advertising on Your Community Website

As a matter of fair housing compliance, your website is an extension of your advertising to the extent you use it to show the benefits of living in the community. Result: You need to be careful that the content you post—including words, photos, video, and other graphic images—don’t express preferences for or against any groups based on race, religion, sex, or other characteristics protected under federal, state, or local fair housing laws.

In general, the website should describe the community, its units, and amenities, but not the kind of people who should want to live there. Providing maps and directions can also express preferences if they include references to institutions or landmarks associated with certain racial, religious, ethnic, or other groups. Examples: Saying your community is within walking distance of:

• A church (signal to Christians)
• A black development (signal to blacks);
• A development known for its history of excluding minorities (signal to whites); or
• A community center dedicated to a particular nationality.