How to Avoid Discrimination Claims When Advertising Online
In this lesson, we’re going to review the fair housing rules as they apply to advertising your community, most of which is probably done online now. Although communities still run print ads in newspapers and apartment guides and on billboards, a large part of their marketing effort is devoted to promoting the property on: (1) websites that list rental vacancies, like Craiglist; (2) social media sites that show ads to their users and allow properties to create their own homepages, like Facebook; and (3) their own community’s website. Whether you’re creating ads and posting them on, say, Craigslist, updating your community’s website, posting community photos on Instagram, or responding to posts on Facebook, all these activities are considered advertising—and must comply with the advertising rules in the Fair Housing Act (FHA).
It’s important to remember that the rules for advertising online are the same as the rules for advertising in print. 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 you use 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, or local fair housing law.
Even when creating and managing a website for your community, you are responsible for all its content. Even if you rely on tech experts or social media consultants to set up your website and social media pages, the buck stops with you.
“Communities may have dedicated marketing employees writing and placing ads for them, but owners and management companies can get into trouble when the social media efforts are left to site employees with no guidance, such as an IT person with no fair housing training or compliance guidelines to follow,” says real estate marketing expert Jonathan Saar. Just as risky is hiring a third-party marketing company to do advertising and social media if that company has no knowledge of fair housing law, he says.
The rules online are also the same as the print rules when it comes to selective marketing. Your online marketing campaign should be broad and inclusive and designed to attract any prospect who may want to live at your community. We’ll discuss a lawsuit recently filed against Facebook that shows just how easily communities can run afoul of the FHA’s ban on selective marketing online if they’re not careful.
Even though Facebook is a media channel, not the company creating the ad, both parties may be held liable for publishing discriminatory content. That’s because the FHA’s ban on discriminatory statements applies to both those who make discriminatory statements and those who publish them. When the FHA was enacted 50 years ago, “publishers” meant newspapers and print media. The question raised in a couple recent court cases was whether the FHA applies equally to online media outlets in light of another federal law that shields 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.
In this lesson, we’ll explain what the FHA says about advertising and suggest five rules for complying with the FHA when promoting your property online.
WHAT DOES THE LAW SAY?
The Fair Housing Act (FHA) prohibits discrimination in housing based on race, color, religion, sex, national origin, familial status, or disability. In addition, many state and local governments have expanded fair housing laws to cover age, marital status, sexual orientation, source of income, and other protected classes.
Under the FHA, it’s unlawful to “make, print, or publish…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….”
According to HUD regulations, discriminatory notices, statements, and advertisements include, but are not limited to:
- Using words, phrases, photographs, illustrations, symbols, or forms that convey that dwellings are available or not available to a particular group because of the race, color, religion, sex, handicap, familial status, or national origin of such persons.
- Expressing to agents, employees, prospects, or any other persons a preference for or limitation on any renter because of the race, color, religion, sex, handicap, familial status, or national origin of such persons.
- Selecting media or locations for advertising the rental of dwellings that deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, handicap, familial status, or national origin.
Unlike other prohibited practices, liability for making discriminatory statements doesn’t 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 statute 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 a newspaper ad for a one-bedroom unit in Chicago [Jancik v. Dept. of Housing and Urban Development, 1995].
Coach’s Tip: HUD’s advertising regulations were rescinded several years ago as part of the government’s efforts to remove advisory materials from official government regulations. Though you’re no longer technically required by law to follow these regulations, HUD has said that it will continue to use them as guidance.
5 RULES FOR AVOIDING FAIR HOUSING PROBLEMS
WHEN ADVERTISING ONLINE
Rule #1: Choose Your Words Carefully
Pay careful attention to the words 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.
The ban on discriminatory advertising applies to all spoken, written, and online statements—including words, phrases, photographs, illustrations, symbols, and other graphics—that suggest that the housing is or is not available to particular groups of people because of a protected characteristic.
In general, that means you shouldn’t use words or phrases that express a preference against members of protected groups—such as “no kids”—or a preference for others—such as “Christians preferred” or “perfect for singles.”
The key question, according to fair housing expert Doug Chasick, is: When prospects look at your advertisements, do they feel welcome? He says you need to ask yourself that question with every ad, slogan, and marketing piece.
A good rule of thumb is to promote the property, not the people. “Focus on the amenities in your rental listing, not on who you think the ideal renter would be,” says Atlanta attorney Lynn M. Wilson.
In describing the community, stick to neutral terms—such as “desirable neighborhood” or “quiet streets”—and avoid certain catch words that have a discriminatory context—such as “restricted,” “exclusive,” or “private.” Furthermore, HUD 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.
As long as the advertisement does not otherwise suggest a discriminatory preference, HUD says that terms that describe a unit’s features such as “walk-in closets” and “family room” don’t violate fair housing law. Here are a few more examples of terms that can be used to highlight the features of a property: “great view,” “second-floor walk-up,” “walkability,” “close to public transportation,” and “ample parking.”
Before using any term, says Chasick, it’s important to put your own opinions aside and consider whether anyone would be offended by the term. Consider the word “bachelor.” HUD’s 1995 memo says that the term, “bachelor apartment,” was a commonly used physical description of housing units and didn’t violate fair housing law. But using the term would still be risky, says Chasick, because it could trigger a fair housing complaint—and even if you win, it’ll still be costly because you’ll have to pay attorney fees, which could add up quickly during protracted litigation.
Example: In 2015, an Ohio community ultimately won its battle to defend itself from allegations of discrimination over an online ad that stated, “Our one bedroom apartments are a great bachelor pad for any single man looking to hook up.” A fair housing organization, which found the ad on Craigslist in 2010, sued the community, arguing that the ad expressed an unlawful preference based on familial status and sex. After protracted litigation, a jury found that the ad violated fair housing law, but that the fair housing organization failed to prove damages. On appeal, the court affirmed that the ad was discriminatory on the basis of sex and familial status but ordered a new trial on the issue of damages. In a later ruling, the court denied the organization’s requests for further relief, ruling that there was no evidence that anyone, other than the organization’s employees, saw or complained about the ad or was discouraged from renting the apartment advertised [Miami Valley Fair Housing Center, Inc. v. The Connor Group, December 2015].
Another term to think twice before using is “master bedroom.” In a memo from 1995, HUD said, “use of the term master bedroom does not constitute a violation of either the sex discrimination provisions or the race discrimination provisions.” Nevertheless, some now say it should be avoided because it suggests a preference based on race and sex.
Whatever your personal opinion, Chasick says, it’s risky to use terms like that in your advertising. In today’s ultra-sensitive environment, he says it’s dangerous to assume that it won’t offend anyone just because it sounds okay to you.
Review all your advertising and marketing materials—from online ads and website language to flyers, brochures, and documents soliciting resident referrals. It’s important to have a manager or someone else with fair housing expertise review and approve every piece of advertising copy before it’s published. “Don’t just make the leasing person into a marketing person—you’ve got to have someone who can ‘wordsmith,’” says Chasick.
Coach’s Tip: While the law generally bans statements that express a preference based on a protected characteristic, 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 part of an affirmative marketing program or undertaken to remedy the effects of prior discrimination in connection with the advertising or marketing of dwellings.
Rule #2: Screen All Photos and Videos for Unlawful Images
Be sure that the videos, photos, and other graphics used in your advertising and marketing—whether in print or online—don’t express any unlawful preferences. The ban on discriminatory statements extends beyond words and phrases to cover images, symbols, logos, and graphics that imply a preference for or against anyone protected under federal, state, or local fair housing law.
For example, take a look at pictures of people, whether they’re your residents, staff, or models. Do they represent people of only one race or ethnic group, or people who appear to represent various racial and ethnic groups? And, unless your community is qualified as a senior community, do they show any kids? Do they show anyone with a disability, or only people playing tennis or running?
HUD 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, HUD says that they should reasonably represent both majority and minority groups in the metropolitan area, both sexes, and, when appropriate, families with children. The 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, disability, familial status, or national origin—and is not for the exclusive use of one such group.
Apply the same scrutiny to any videos you post online. Video has become a very popular marketing tool in the housing industry, says Saar. With smartphones, anyone can take short 10- to 15-second videos of community events featuring residents, or of office staff promoting leasing specials, and post them instantly to the community’s Instagram, Twitter, or Facebook account. But before employees take a video, Saar says, they need to ask, why are we taking this video, who are we targeting, and why are we targeting them? You shouldn’t risk letting an employee randomly shoot from the hip, then press the “send” button, without following any guidelines, he warns.
Rule #3: Use the EHO Logo
One image that should appear in all your advertising—print and online ads, community website, and social media pages—is HUD’s Equal Housing Opportunity logo and slogan. Though not required under fair housing law, use of the symbol and the slogan “Equal Housing Opportunity” 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.
“Always include HUD’s Equal Housing Opportunity or fair housing logo in your advertisements and on your website,” advises Wilson. Use of the logo could work in your favor, for example, 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 use of a religious symbol, by itself, may indicate a religious preference. But if that name or symbol is 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 that the advertising will pass muster under fair housing law.
Example: In June 2017, a federal district court dismissed the claims against a Southern California apartment community accused of using advertising that discriminated against people with disabilities. A prospective renter claimed that she went online to see if the community had any apartments available to rent and to assess the accessibility of the property and its units. She claimed that the owners’ “Internet advertising uses selective media or content exclusively to cater to the majority population without disabilities,” citing yelp.com, yellowpages.com, and apartmentcloud.org, among other media outlets. She claimed that the community’s advertising uses “catch words, symbols or logotypes and colloquialisms that suggest a preference for people without disabilities”; that none of the human models in the ads appear to have a disability; and that the community’s “website [notices, statements, and advertisements] are not accessible visually since one is not able to click and increase the font size to make it more readable for persons with impaired vision.”
The court found that the woman failed to show a single notice, statement, or ad that “an ordinary person would conclude conveys a discriminatory preference.” She showed no ads with any human models. And while she argued that the owner’s “selective placement of the equal housing opportunity logo suggests a preference for people without disabilities,” the court stated, “It is unclear why use of the equal housing opportunity logo on some advertisements, or the lack of the logo on others, would convey a discriminatory preference for tenants without disabilities” [Cross v. HFLP-Dolphin Beach, LLC, June 2017].
Coach’s Tip: The HUD logo is available for download in various sizes at https://www.hud.gov/library/bookshelf11/hudgraphics/fheologo.
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. “Do not exclude any particular group or category from your marketing campaign,” advises Wilson.
You could be accused of selective marketing practices in your choice of media if your marketing and advertising materials run only in media outlets that cater to certain segments of the population. According to HUD regulations, fair housing law 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.
Example: A federal district court refused to dismiss the fair housing claims that a group of 15 primarily Latino residents filed against the owners and operators of seven rental properties in Los Angeles. The group accused the owners of marketing newly vacated units primarily through websites directed at young, English-speaking, single, nondisabled people (such as Radpad, Hotpads, and Walk Score), among other discriminatory tactics to prevent Latino and disabled people from renting there and to force out the Latino and disabled tenants who currently resided there. They claimed that the owners discriminated against them “by select[ing] media for advertising the rental of dwellings which deny particular segments of the housing market information about housing opportunities” [Martinez v. Optimus Props., LLC, March 2017].
It’s not illegal to target certain groups in your marketing, however, as long as it’s part of a broad, inclusive marketing campaign and you have a valid, nondiscriminatory reason for doing so, says Chasick. 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, create a written marketing plan that details where and how your community markets itself, says Chasick. 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, he says. 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.
Include your social media advertising in your written marketing plan and make sure the channels you choose, and the settings you choose for your ads, meet your inclusive marketing goals. “Do not be misled by the low cost of advertising on social media platforms—the potential cost of a violation is significant,” warns Wilson. “Facebook, for example, has over 2 billion users, and it customizes the audience for its advertisers based on its trove of user data. It starts with the settings you choose for your ads. If those settings exclude certain audiences or neighborhoods from seeing your ads, you are violating the Fair Housing Act,” she says.
“When you advertise on Facebook, Craigslist, Twitter, etc.,” Wilson says, “you are allowing the platform to use its own algorithms to push your advertisement. Fair housing testers continuously monitor these platforms, and if they assert a violation against an advertiser, the platform algorithm does not protect the advertiser from potential liability for the alleged violation.”
Example: In March 2018, the National Fair Housing Alliance (NFHA) and three of its member organizations sued Facebook, Inc., alleging that the social media’s advertising platform enables landlords and real estate brokers to exclude families with children, women, and other protected classes of people from receiving housing ads. The civil rights groups allege that Facebook’s practices violate federal and local fair housing laws that bar discrimination in housing advertising. Facebook customizes the audience for its millions of advertisers based on its vast store of user data, according to the NFHA. The lawsuit alleges that Facebook has created pre-populated lists that make it possible for its housing advertisers to “exclude” (in Facebook terminology) home seekers from viewing or receiving rental or sales ads because of protected characteristics, including family status and sex.
Allegedly, the fair housing groups conducted investigations in each of their respective housing markets by creating a nonexistent realty firm and then submitted dozens of housing advertisements to Facebook for review. In response, the complaint alleges, Facebook provided specific lists of groups that could be excluded from receiving the ads, including families with children, moms with children of certain ages, women or men, and other categories based on sex or family status.
The complaint also alleges that Facebook provides housing advertisers with 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).
Starting in 2016, an investigation by the news organization ProPublica found that Facebook’s ad platform permitted advertisers for a variety of goods and services, including housing, to exclude African Americans, Latinos, and Asian Americans from receiving ads. The complaint alleged that Facebook has recently removed some of these options, but it continues to violate fair housing laws that prohibit discrimination in other ways.
Rule #5: Develop a Social Media Policy
Part of your written marketing plan should include a coordinated strategy to take advantage of all the benefits of social media tools, which may include a company website, Facebook page, Twitter postings, YouTube videos, and blogs. Developing a strategy will provide a blueprint for using these tools effectively—and to avoid pitfalls that may emerge along the way. A key aspect of the strategy is to appoint the one “ultimate” owner of all social media activity, someone who will be the final arbiter of content, recommends Chasick.
Create a policy with guidelines on the use of social media tools. Among other things, the policy should describe your community philosophy regarding social media, how it should be used, which tools and platforms are covered under the policy, and legal matters, such as libel, copyright, and privacy concerns. In addition, the policy should address employee behavior, such as the importance of adhering to the terms of service for Facebook and other tools and sites, and the consequences for failing to do so.
Include fair housing concerns, so everyone understands the ramifications of posting comments or pictures that imply a preference for or against anyone based on race, color, national origin, religion, sex, disability, or familial status (unless, as to familial status, the community qualifies as senior housing)—and any other characteristic protected under state or local law. Provide fair housing training to the employees responsible for administering the community’s Facebook page, writing blog entries, or engaging in social networking sites. They may be media-savvy, but they may not be well versed in the nuances of the fair housing advertising rules.
No matter which platform you use, keep in mind that social media requires interaction. Don’t simply set up a Facebook page and forget it. For one thing, it will undermine your marketing efforts, potentially driving traffic away from your community if it appears that you’re unresponsive. That’s especially true if someone posts negative comments about your community, management, employees, or other problems on your Facebook page or other social media sites. If you get negative comments on a Facebook page, for example, you can turn them around by responding in a positive manner, says Wilson. Turn a negative into a positive, if not for the individual posting the negative comment but for the person reading the post to find out more about the company, she says.
Pay particular attention to any comments that signal a potential fair housing problem, such as a complaint with racial or ethnic overtones. Respond promptly, and take steps to resolve the problem to avoid an informal grievance from developing into a formal fair housing complaint.
Include strong language in a disclaimer on your website, blog, or Facebook page that you have the right to remove any posts or comments that are discriminatory or obscene, include profanity, or attack or harass others. Perform damage control by removing the offensive materials as soon as possible and emphasizing your community’s commitment to fair housing law. “But do not remove the post unless it is threatening or harmful,” says Wilson.
Again, be sure to appoint designated staff to monitor the comments daily and charge them with removing or hiding inappropriate comments. Consider addressing the personal comments that you remove or hide one-on-one. For example, if someone is venting over a parking issue, then the manager could reach out to the resident directly, not through Facebook.
Also, if you respond online to grievances, be aware that your responses might not reach all of your residents. Many residents may not use your website or social media, so if you have an important message to convey to the entire community, consider using print, mail, and more formal methods to reach everyone.
Your social media policy should answer the following questions:
- If people post comments about your community, will you respond and how?
- Who will be in charge of monitoring social media sites and responding to or removing posts when necessary? Designate one person or a team to do the monitoring and responding, advises Wilson.
- How much time will be committed to monitoring and responding? You should continually monitor sites where posts are likely to appear, Wilson says.
- How will you train employees in the proper use of your social media? Train employees before giving them access to social media accounts, says Wilson, and provide regular training opportunities. The person who’s responsible for staying on top of changes to fair housing law—on the federal, state, and local levels—should educate the social media team promptly about any changes to compliance requirements.
- Since you must be concerned about fair housing issues, what will you do if someone posts something inappropriate about neighbors?
Wilson recommends developing procedures that provide a framework for all advertisement content, social media content, website content, and email exchanges. Establishing a documentation protocol can be particularly important with regard to email communications regarding a prospective applicant and available units.
Finally, Wilson recommends requiring employees to sign a document acknowledging the company’s social media policies and procedures.
- Fair Housing Act: 42 USC §3601 et seq.
- FHA regulations: 24 CFR §100.75
- Guidance Regarding Advertisements Under §804(c) of the Fair Housing Act, Jan. 9, 1995: https://www.hud.gov/sites/documents/DOC_7784.PDF
No longer on HUD’s website:
- Memorandum, Fair Housing Application to Internet Advertising, Sept. 20, 2006: https://www.hud.gov/sites/documents/INTERNETADVERTMEMO.PDF
- FHA Advertising regulations, Part 109 (rescinded): https://www.hud.gov/sites/documents/DOC_7781.PDF
Douglas D. Chasick, CPM, CAPS, CAS, ADV. RAM, CLP, SLE, CDEI: President, The Fair Housing Institute, Inc.; (321) 956-2188; firstname.lastname@example.org.
Jonathan Saar: Market Me Social; (678) 296-3610; email@example.com.
Lynn M. Wilson, Esq.: Partner, 990 Hammond Dr., Ste. 300, Bldg. One, Atlanta, GA 30328; (678) 686-6936; firstname.lastname@example.org.
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