Advertising In The Modern Age: How To Ensure Compliance With Fair Housing Law
This month, we are going to review fair housing rules applicable to advertising and marketing—and explain how to apply those rules in the shift from traditional forms of print media to new media, including the Internet, Facebook, and other Web-based technologies.
Increasingly, discriminatory online advertising has been gaining attention from fair housing advocates and enforcement agencies. Under fair housing law, communities may be held liable for discriminatory advertising—regardless of its format. And although fair housing law was designed to cut off venues for discriminatory advertising by holding publishers liable for discriminatory statements, enforcement of those provisions has run into a roadblock when it comes to online advertising. In contrast to print advertisers, online media outlets are generally immune under another federal law from liability for content supplied by others, leading to court decisions with mixed results.
Fair housing advocates say that the problem has led to a significant jump in discriminatory advertising. Indeed, after its investigation last summer uncovered “rampant housing discrimination online,” the National Fair Housing Alliance has urged Congress to amend federal law to hold online advertisers, such as Craigslist, to the same standards as newspapers and other print media.
Though it's largely shaping up as a fight against the online distributors of discriminatory advertising, communities could get caught in the crossfire. The increased pressure on the government to crack down on discriminatory online advertising—and the recent influx of government funding for fair housing enforcement—could lead to enhanced efforts to track down the source of discriminatory ads—and hold communities accountable.
Example: In March 2010, Housing Opportunities Made Equal of Virginia, Inc. (HOME) filed 20 complaints with the federal and state authorities, alleging that advertisements on Craigslist and other online housing sites discriminated on the basis of gender, race, color, and national origin. According to HOME, several cases involved ads soliciting female prospects for sex in exchange for rent, such as this ad: “free rent for female…must be very attractive female because it's rent free, preferably a lightskinned female or a Spanish female.” HOME alleged that ads such as that amount to sexual harassment—a form of housing discrimination.
This month, we'll review the rules applicable to advertising and marketing practices and suggest six rules to help you ensure compliance with fair housing law. Then, you can take the COACH's Quiz to see how much you have learned.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. In addition, some communities are subject to state and local laws that ban discrimination based on characteristics such as age, marital status, or source of income.
Among the discriminatory practices outlawed under the FHA is “to 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, or an intention to make any such preference, limitation, or discrimination.”
According to HUD, those provisions ban the use of “words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of race, color, religion, sex, handicap, familial status, or national origin.” With respect to familial status, for example, HUD guidelines state that advertisements may not contain limitations on the number or ages of children or state a preference for adults, couples, or singles. Nevertheless, recent cases reveal that communities continue to get into fair housing trouble for use of such terms in advertising.
Example: In March 2010, a 74-unit luxury apartment community in Pennsylvania agreed to settle discrimination claims for allegedly advertising the community as “21 years or older” in local newspapers and refusing to rent to families with children. After a federal court granted the government's request for judgment without a trial on liability, the community agreed to resolve the matter by paying $35,000 in damages and penalties and by adopting corrective measures, including training, a nondiscrimination policy, record keeping, and monitoring. “HUD brought this case because publishing ads that tell families with children they are not welcome is illegal,” HUD's Assistant Secretary for Fair Housing and Equal Opportunity John Trasvina said in a statement announcing the settlement.
Unlike other prohibited practices, liability for making discriminatory statements does not require proof of discriminatory intent. Instead, the focus is on whether the statement would suggest a preference to an “ordinary reader or listener.” That means that it's not necessary for an ad to jump out at the reader with an offending message—courts have found instead that the law is violated by “any ad that would discourage an ordinary reader of a particular [protected group] from answering it.”
For example, a federal court found a community owner liable for violating the FHA's ban on discrimination based on familial status by stating “mature person preferred” in an newspaper ad for a one-bedroom unit in Chicago [Jancik v. Dept. of Housing and Urban Development, Illinois, 1995].
COACH'S TIP: Because they were considered advisory materials, HUD's advertising regulations were withdrawn from the government's official regulations. Though you are no longer technically required by law to follow them, the regulations are a helpful resource because HUD has said that it will continue to use them as guidance.
6 RULES TO ENSURE YOUR ADVERTISING COMPLIES WITH FAIR HOUSING LAW
Rule #1: Choose Your Words (and Graphics) Carefully
Pay careful attention to the words or graphics you choose in your advertising and marketing materials to ensure that they don't contain discriminatory statements based on any characteristic protected under federal, state, or local law.
In general, the law bans the use of words or phrases that express a preference against members of protected groups—such as “no blacks” or “no kids—or a preference for others—such as “Christians preferred” or “perfect for singles.” Furthermore, HUD says that communities should avoid the use of words or phrases used regionally or locally that imply or suggest race, color, or other protected characteristic.
To cut off a major source of fair housing trouble, fair housing experts warn communities to take steps to prevent a leasing consultant's personal feelings or preferences from creeping into your community's advertising messages. That means educating staff members repeatedly about fair housing law in general—and the rules governing advertising and marketing in particular. In addition, consider adopting an iron-clad rule that a manager or someone else with fair housing expertise must review and approve every piece of advertising copy before it's published.
Do the same with all other marketing materials, including flyers, brochures, and documents soliciting resident referrals. For example, fair housing experts report seeing statements such as “no kids” or “no more than one child” in resident referrals, so it's equally important to review marketing materials for inappropriate content as it is for advertisements.
The ban on discriminatory statements extends beyond words and phrases to cover images, symbols, logos, and graphics that imply a preference for or against individuals based on a protected characteristic. For example, HUD warns that use of a religious symbol standing alone may indicate a religious preference.
HUD also warns that human models in photographs, drawings, or other graphics may not be used to indicate exclusiveness because of race, color, religion, sex, handicap, familial status, or national origin. If models are used in display advertising campaigns, HUD says that the models should be clearly definable as reasonably representing majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children.
Furthermore, models should portray people in an equal social setting and indicate to the general public that the housing is open to all without regard to race, color, religion, sex, handicap, familial status, or national origin, and is not for the exclusive use of one such group.
COACH'S TIP: In general, the law bans statements that express a preference based on a protected characteristic, but there are a few exceptions:
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.
Accessible housing: Ads with information about the availability of accessible housing.
Affirmative advertising: Ads designed to attract persons to dwellings who would not ordinarily be expected to apply, when such efforts are pursuant to an affirmative marketing program or undertaken to remedy the effects of prior discrimination in connection with the advertising or marketing of dwellings.
Rule #2: Describe the Property, Not the Population
To avoid accusations of discriminatory advertising, make sure your advertising focuses on descriptions of the property available for rent, not the kind of people who may want to live there.
In describing the community, it's important to stick to neutral terms—such as “desirable neighborhood” or “quiet streets—and to avoid certain catch-words that have a discriminatory context, such as “restricted,” “exclusive,” or “private.” HUD also warns against giving directions that imply a discriminatory preference, limitation, or exclusion, such as your community's proximity to a synagogue, congregation, or parish, which may indicate a religious preference. By the same token, references to racially significant landmarks—such as a former “whites-only” country club—may imply a preference based on race.
In describing the unit itself, HUD says that terms that describe a unit's features such as “master bedroom,” “walk-in closets,” and “family room” do not violate fair housing law as long as the ad does not otherwise suggest a discriminatory preference. Likewise, HUD says that ads with commonly used physical descriptions of housing units—such as “mother-in-law suite—or descriptions of conduct required of residents—such as “non-smoking” or “sober—do not violate federal fair housing law.
COACH'S TIP: To keep your ads from describing people instead of the property, a general rule of thumb is to avoid the use of phrases like:
“Perfect for…” as in “Perfect for a Christian family.”
“Ideal for…” as in “Ideal for empty-nesters.”
“Suitable for…” as in “Suitable for single woman.”
Ads containing those phrases are likely to catch the eye of fair housing advocates, increasing the odds that you'll trigger an investigation or complaint.
Rule #3: Use the HUD Logo
Use HUD's fair housing logo and statement in your advertising. Though not required under fair housing law, use of the statement and symbol reinforces your community's reputation as an equal housing opportunity provider by sending the message that your community is available to all persons regardless of race, color, religion, sex, disability, familial status, or national origin. Think of the logo and statement as insurance—it's there to protect you in case you need it to counter any misunderstandings that may arise from your advertising.
As an example, HUD says that advertising for communities with a religious name (such as “Roselawn Catholic Home”) or that use a religious symbol, by themselves, may indicate a religious preference. But if it's paired with a disclaimer—that the community does not discriminate based on race, color, or any other characteristic protected under federal, state, or local law—HUD says the advertising will pass muster under fair housing law.
The size and placement of the logo depends on factors such as the type of media used and, in print media, the size of the advertisement. The HUD logo is available for download in various sizes at www.hud.gov/library/bookshelf11/hudgraphics/fheologo.cfm.
COACH'S TIP: HUD warns against selective use of the equal opportunity logo and statement—for example, by using them in advertising that reaches some geographical areas but not others, or with respect to some properties but not others.
Rule #4: Practice Inclusive Marketing
To avoid fair housing trouble from your advertising and marketing practices, it's important to be careful not only in what you say—but also where and how you say it.
You could be accused of selective marketing practices in your choice of media if your marketing and advertising materials only run in media outlets that cater to certain segments of the population. According to HUD regulations, the FHA prohibits communities from selecting media or locations for advertising that deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, disability, familial status, or national origin.
Selective advertising can also be considered unlawful “steering,” which is illegal under fair housing law. Steering means guiding, directing, or encouraging prospects to live—or discouraging prospects from living—in a certain neighborhood, community, or area within a community because they are members of a group protected under fair housing law.
What that means is that you can't selectively market your community only to certain people—such as members of particular racial, ethnic, or religious groups—as a way to exclude others from your community. For example, HUD warns against the use of English-language media alone or the exclusive use of media catering to the majority population in an area where non-English language or other minority media also is available.
Nevertheless, fair housing experts say that it is not illegal to target market to certain groups as long as it's part of a broad, inclusive marketing campaign and you have a valid, nondiscriminatory reason for doing so. If, for example, you find that members of a particular ethnic group have settled into your community and the surrounding area—and you did nothing to create or encourage the situation—an inclusive campaign could include outlets that cater to that group because it's already represented.
To demonstrate that your marketing campaign is broad and inclusive, fair housing experts recommend a written marketing plan that details where and how your community markets itself. Keep copies of the advertisements you place, with detailed records of when and where you placed them. Keeping a written record of your marketing campaign will demonstrate your efforts to run an inclusive marketing campaign without discrimination. And if the racial or ethnic makeup of your current residents is not diverse, your records will document your efforts to reach a wide, diverse audience and show that you did nothing to create or encourage the situation.
COACH'S TIP: Another way to get into trouble for selective advertising is to run totally different marketing campaigns in different geographical areas. For example, HUD warns against selective use of human models, such as using human models primarily in media that cater to one racial or national origin segment of the population without a complementary advertising campaign that is directed at other groups. Another example may involve using racially mixed models to advertise one community and not others.
Rule #5: Apply the Same Rules to Online Advertising
Advertising online is quickly becoming the way to attract prospects and fill vacancies. Advertising in apartment guides and directories now usually appears both in print and on the company's Web site. In some markets, communities have transitioned away from newspapers to posting online ads on Craigslist and other free third-party Web sites. Others are marketing their communities by creating their own Web sites.
When it comes to liability under fair housing law, it's important for communities to remember that the rules are the same, regardless of whether your advertising appears in print or on the Internet. The ban on discriminatory advertising applies to all advertising media, including newspapers, magazines, television, radio, and the Internet, according to HUD.
As far as content is concerned, that means that you must watch the words and images used in online advertising to make sure that they meet the same standards as those used in print media. You could face liability if your online ads reflect an unlawful preference for or against potential residents based on a characteristic protected under federal, state, and local law.
Example: As part of the state's ongoing investigation into widespread discriminatory Internet advertising, Massachusetts officials recently reached 20 settlements and filed six complaints against owners and real estate agents accused of violating state antidiscrimination laws on Craigslist, one of the most frequently visited Web sites in the country, with more than 50 million visitors per month in the United States alone. Discrimination against families with children and against recipients of housing subsidies—with ads such as “no children” or “no Section 8—were the most common types of prohibited discrimination encountered, according to officials. Under Massachusetts law, it is illegal to discriminate against someone because the presence of children might trigger a property owner's duties under the lead paint laws or because someone receives a housing subsidy, such as a Section 8 voucher, to pay for some or all of his rent.
In establishing a Web site for your community, remember that you are responsible for all content. Even if you rely on technology experts or Internet marketing consultants to set up the Web site, the buck stops with you. Fair housing experts Doug Chasick and Nadeen Green explain that, as a practical matter, your Web site is no different from traditional advertising, so the same rules apply: You must ensure that all content—both words and pictures—are fair housing compliant.
The rules are also the same when it comes to selective marketing on the Internet. Your online marketing campaign should be broad and inclusive, and designed to attract any prospect who may want to live at your community.
Finally, just as you would do in print advertising and marketing materials, it's a good idea to use the Equal Housing Opportunity logo or statement in online ads and on your community's Web site to demonstrate your intention to comply with fair housing law.
COACH'S TIP: A pair of court cases decided a few years ago may have led to confusion over fair housing liability for online advertising. To sort it out, remember that the FHA's ban on discriminatory statements applies on two levels—those who “make” discriminatory statements and those who “publish” discriminatory statements. When the FHA was enacted 40-plus years ago, “publishers” meant newspapers and print media. The question raised in the court cases was whether the FHA applies equally to online media outlets in light of another federal law that shields those providing an “interactive computer service” from liability for content provided by others. The courts came to opposite conclusions, but neither upset the basic principle that holds communities liable under fair housing law as the source of any discriminatory advertising—whether online or in traditional print media outlets.
Rule #6: Remember the Rules When Venturing into New Media
Having grown well beyond their original audience and purpose, social networking Web sites like Facebook may be the next venue for marketing your community. The federal government has embraced the new technology—HUD has its own Facebook page (www.facebook.com/HUD) as well as a presence on YouTube, Flickr, and Twitter—and many communities are seeing the value in using those platforms to attract prospects and add value to residents.
Social media can be a great tool, but it can also be harmful if not used wisely, advise Chasick and Green. Although the jury is still out on liability under fair housing law for statements on these platforms, Chasick and Green suggest that fan pages on Facebook and other forms of social media could be considered advertising if the ultimate goal is effective marketing of your community or company.
With that in mind, Chasick and Green recommend that communities make informed business decisions by asking a few questions before taking the leap into social media, such as:
If people post comments about your community, will you respond, and how?
Who will be in charge of monitoring and responding?
How much time will be committed to monitoring and responding?
How will you train employees in the proper use of your social media?
Since you must be concerned about fair housing issues, what will you do if someone says something inappropriate about neighbors?
COACH'S TIP: Whatever platform you use, experts advise that social media requires interaction—if you get negative comments on a fan page, for example, you can turn them around by responding in a positive manner. But you can't turn obscene or discriminatory posts into positive ones, so it's a good idea to include a disclaimer to warn that the fan page administrator has the right to remove posts that are obscene or attack or harass other fans. For more tips on using social media, take a look at “How to Use Social Media to Market Apartments, Improve Communication,” in the May 2010 issue of Apartment Building Management Insider, www.apartmentmanagerinsider.com.
Fair Housing Act: 42 USC §3601 et seq.
FHA Advertising regulations, 24 CFR Part 109 (rescinded): www.hud.gov/offices/fheo/library/part109.pdf.
FHA regulations: 24 CFR §100.75.
Guidance Regarding Advertisements Under §804(c) of the Fair Housing Act, Jan. 9, 1995: www.hud.gov/offices/fheo/library/sect804achtenberg.pdf.
Memorandum, Fair Housing Application to Internet Advertising, Sept. 20, 2006: www.hud.gov/offices/fheo/library/Guidance-InternetAds.pdf.
Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: Senior VP, Multifamily Professional Services, CallSource, 180 Heron Dr., Melbourne Beach, FL 32951; (888) 222-1214; email@example.com.
Nadeen W. Green, Esq.: Senior counsel, For Rent Magazine, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; firstname.lastname@example.org.
Anne Sadovsky, CSP: Anne Sadovsky and Co., Dallas, TX; (866) 905-9300; email@example.com.
Carl York: Vice President, Sentinel Real Estate Corp., 8495 Scenic View Dr., Ste. 106, Fishers, IN 46038; (317) 570-6724; York@sentinelcorp.com.
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|June 2010 Coach's Quiz|