Make Sure Your Advertising Complies with Fair Housing Laws
The Fair Housing Act (FHA) prohibits discrimination in housing because of race, color, religion, sex, national origin, familial status, or disability. In addition to having to comply with federal law, New York City’s housing discrimination law expands the FHA’s scope and offers more protected classes. The additional protected classes include age, citizenship status, sexual orientation, lawful occupation, lawful source of income (including Section 8 recipients), and partnership status.
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 the Department of Housing and Urban Development (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.
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.”
Locally, the NYC Commission on Human Rights is charged with enforcing the local fair housing laws. The law enforcement bureau of the NYC Commission on Human Rights reported a settlement made with an owner in May 2012. The owner was liable for posting discriminatory ads refusing to accept Section 8 or other voucher applicants. This discrimination was verified by a commission tester, and the owner had to pay a civil penalty of $6,500 and undergo antidiscrimination training.
To help you avoid similar trouble with HUD and NYC Human Rights Commission investigators, follow these three 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 owners and managers should avoid the use of words or phrases used regionally or locally that imply or suggest race, color, or other protected characteristic.
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.
The NYC Commission on Human Rights has indicated that the following phrases in real estate advertisements are likely to be discriminatory:
- White family home
- No Irish
- Christian home
- No programs
- No Section 8
- No wheelchairs
- No small children
- Couple preferred
- Heavily Jewish area
- Adult or mature couple
In general, fair housing laws ban 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 buildings 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 wouldn’t 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
The NYC Commission on Human Rights recommends that you limit advertising descriptions to features of the property to avoid accusations of discriminatory advertising. So make sure your advertising focuses on descriptions of the property available for rent and not the kind of people who may want to live there.
In describing the building or location, it’s important to stick to neutral terms—such as “desirable neighborhood” or “quiet streets”—and to avoid certain catchwords 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.
HUD also says that ads with commonly used physical descriptions of housing units or descriptions of conduct required of residents—such as “non-smoking” or “sober”—do not violate federal fair housing law.
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 testers and investigators, increasing the odds that you’ll trigger an investigation or complaint.
Rule #3: 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’re 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 isn’t 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 building 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.
For more information on the FHA’s application to advertising, you can visit the following sites:
- FHA Advertising regulations, 24 CFR Part 109: www.hud.gov/offices/fheo/library/part109.pdf
- Guidance Regarding Advertisements Under §804(c) of the Fair Housing Act, Jan. 9, 1995: http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_11870.pdf
- Memorandum, Fair Housing Application to Internet Advertising, Sept. 20, 2006: http://portal.hud.gov/hudportal/documents/huddoc?id=DOC_7749.pdf