ADVERTISING OBLIGATIONS FOR REAL ESTATE FIRMS AND AGENTS UNDER FAIR HOUSING LAW

The basic obligations to be followed by every Real Estate Firm and Agent are three-fold:

Ø screen real estate advertising for discriminatory content

Ø develop and enforce a nondiscrimination policy in the area of real estate advertising

Ø train and inform agents and employees

A Real Estate Firm has an obligation to insure that Agent advertising does not involve the selective use of particular media catering to limited groups, or other, similar selective advertising strategies.

Every Real Estate Firm and Agent involved in advertising should have a working knowledge of the requirements of the applicable laws, and be sensitive to other legal issues that may arise concerning real estate advertising.

Screening of Advertising

Real Estate Firms and Agents should engage in a pre-publication review of real estate ads including at least the following checks:

(1) screen ads for the use of discriminatory words, phrases, symbols, directions, or other verbal cues;

(2) screen ads for the composition of human models depicted in ad campaigns and for any other visual cues; and

(3) screen ads for the use of the appropriate Equal Housing Opportunity logotype or statement. Examples of the type of advertisements which may be discriminatory and should not be published or disseminated are discussed in detail below.

Real Estate Firms, Agents and others engaged in the real estate business must remember that the Fair Housing Act broadly applies to any "notice, statement or advertisement." Be sure to screen for discriminatory content not only your newspaper ads, but also any other materials you distribute or display. This includes flyers, brochures, deeds, applications, signs, banners, posters, billboards, and informational materials of any type, including MLS listings and other electronic messages. Your review should also include any advertising you do in non-print media, such as television or radio ads, sales videos, audiovisual displays, signs in sales offices, and so on. Each of these could be considered a "notice, statement or advertisement" with respect to a dwelling, and none may be discriminatory.

Adoption of a Fair Housing Advertising Policy.

Real Estate Firms should have a Fair Housing Advertising Policy that provides clear guidelines for Agents and employees to follow. It should inform them that your firm is aware of its obligations under Fair Housing Law, and intends to comply with those obligations. The Policy should also provide for meaningful enforcement mechanisms. It should make clear that your firm will not do business with anyone who is engaging in discrimination, and should make clear to Agents and employees that compliance with the Policy is a term and condition of affiliation and employment.

Real Estate Firms and Agents need to be aware that ensuring compliance with Fair Housing Law is an active, ongoing process. Simply adopting a Fair Housing Policy on paper and passing it out will not insulate a Firm or Agent from liability if steps have not be taken to apply and enforce that policy in practice. A Real Estate Firm which simply gives a copy of a Fair Housing Policy to Agents and employees and does not make enforcement of that policy a part of the Agent’s and employees' job responsibilities, runs the risk of lawsuits. Enforcing a fair housing policy requires dedication and vigilance. Agents and employees need to understand the very serious consequences of discriminatory advertising, and to appreciate that compliance with the Firm’s Fair Housing Advertising Policy is in the interest of the firm’s business.

Training and Notification.

Real Estate Firms must also ensure that Agents and employees receive appropriate training, and that customers and clients are informed of the Firm’s F housing Policy. HUD regulation [24 C.F.R.§ 109.30(d)] specifically provide that the Firm should:

(1) Provide a printed copy of the Firm’s nondiscrimination policy to each Agent and employee.

(2) Post a copy of the Firm’s nondiscrimination policy in a conspicuous location for customer and client visitors to view.

Selective Placement of Advertising.

Firms and Agents need to be sensitive to the placement and targeting of their overall advertising program. The HUD regulations caution against the selective use of media catering to particular protected classes, the selective use of advertising directed at limited geographic locations, the selective use of Equal Housing Logos, and the selective use of human model advertising.

This is essentially a common sense test. Usually working on a fixed budget, Firms and Agents must necessarily target their advertising to where it will bring in the most customers. In developing this targeting, however, it is important to be sensitive to whether your advertising is or could be perceived as directed at or against a particular racial, ethnic, or other group. If this is the case [ for example, a planned promotional mailing to go out only to neighborhoods which are predominately white ] it is important to devote part of your advertising budget to complementary attempts to reach other racial groups.

The law applies to: Classified Ads, Display Ads, Inserts, any other type of real estate or rental advertising, and the selective placing of advertisements.  It applies to any type of advertising or written material: MLS listings, Brochures, Direct Mailing, Radio or television ads, Videos, Posters, Signs, Billboards, and other Documents.

WHAT ADVERTISING DISCRIMINATION LAWS PROHIBIT

Classes Protected by the Advertising Discrimination Laws

Federal Law : Race, Color, Religion, Sex, Handicap, Familial Status, National Origin

Tennessee Law: Race, Color, Creed, Religion, Sex, Age, Handicap, Familial Status, National Origin

These laws apply to any type of Real Estate or Rental Advertising: Classified Ads, Display Ads, Inserts, MLS listings, Brochures, Direct Mailing, Radio Ads, Television Ads, Videos, Posters, Signs, Billboards and the Selective Placement of Advertisements.

Words Descriptive of the Dwelling, Landlord, and Tenants:

In general, advertisements which use explicit words which refer to protected classes under the law in connection with describing the dwelling, landlord, tenants, or neighborhood will be found to violate the law. Examples of such usage would include:

ü White home

ü Colored home

ü Jewish home

ü Hispanic residence

ü Adult building

ü Singles complex

ü Christian landlord

ü Gay landlord

ü Mixed neighborhood

ü Latino neighborhood

ü Male tenants

ü Female tenants

Words Descriptive of a Protected Class:

Advertisements which use words descriptive of a protected class should raise a red flag, and call for further review for the legality of the advertisement. Examples of such language would be:

Race:

ü Negro

ü Black

ü Caucasian

ü Oriental

ü American Indian

ü Arab

Color:

ü White

ü Black

ü Colored

Religion:

ü Protestant

ü Christian

ü Catholic

ü Jew

National Origin:

ü Mexican American

ü Puerto Rican

ü Philippine

ü Polish

ü Hungarian

ü Irish

ü Italian

ü Chicano

ü African

ü Hispanic

ü Chinese

ü Indian

ü Latino

Sex:

ü Man

ü Male

ü Woman

ü Female

Handicap:

ü Crippled

ü Blind

ü Deaf

ü Mentally ill

ü Retarded

ü Handicapped

ü Physically fit

Familial Status:

ü Adults

ü Children

ü Families

ü Singles

ü Mature persons

ü Empty nesters

Sexual Preference:

ü Gay

ü Lesbian

ü Homosexual

ü Bisexual

ü Heterosexual

Political affiliation:

ü Democrat

ü Republican

ü Communist

Source of Income:

ü Welfare

ü Alimony

ü Employed

Marital status:

ü Single

ü Divorced

ü Married

ü Widowed

Catch Words:

The HUD regulations emphasize that real estate advertising should also avoid certain "catch words," words and phrases that are frequently used in a discriminatory context. Examples would be:

ü Restricted

ü Exclusive

ü Private

ü Integrated

ü Traditional

ü Board approval

ü Membership approval

Symbols or Logotypes:

HUD emphasizes that real estate advertising should also avoid using symbols or logotypes which imply or suggest race, color, religion, sex, handicap, familial status, or national origin. Some examples would be:

ü Christian cross

ü Jewish star

ü Male or female symbol

ü National flag

Colloquialisms:

HUD cautions as well against advertising which uses words or phrases used regionally or locally which imply or suggest race, color, religion, sex, handicap, familial status, or national origin.

Directions:

Directions to real estate for sale or rental (use of maps or written instructions) that may imply a discriminatory preference, limitation, or discrimination. Examples would be directions which refer to landmarks which have racial or ethnic significance, such as directions relying on:

ü Existing black development (signal to blacks)

ü Existing development known for exclusion of minorities (signal to whites)

ü Neighborhood known for racial make-up

ü Neighborhood known for national origin of inhabitants

ü Synagogue

ü Church

ü Congregation

ü Parish

Area or Location Description:

HUD also cautions against advertising which refers to facilities which cater to a particular racial, national origin, or religious group, such as:

ü Country clubs

ü Private school designations

ü Names of facilities used by exclusively one sex

References To Protected Class Which May Be Permissible:

The exceptions in which preferential advertising is permitted are limited. Those exceptions include the following situations:

ü Advertisements for Roommates. Advertisements for roommates may specify gender, but only in two cases:

1. If the accommodation involves shared living space, or

2. If the housing is a dormitory in an educational institution.

Keep in mind: Advertisements for apartments or housing not involving shared living space may not specify gender. Where living space is shared, only the gender of a roommate may be specified, and the ad may not specify race, religion, or any other protected class.

ü Handicapped Access. 

Advertisers may include information in their real estate advertising about the availability of handicapped accessible housing. For example, advertisers may promote such features as:

1. Availability of handicapped accessible units

2. Exception from a no-pets policy for guide dogs

ü Housing For Older Persons. 

Advertising for housing intended and operated for occupancy by older persons which meets the federal law qualifications for "housing for older persons" may make reference to age. Such advertising may permissibly use such phrases as:

1. Housing for older persons

2. Senior Complex.

However, such advertising is permissible only if the housing advertised meets the legal requirements. The legal rules in this area are complicated, and real estate firms working in this area may wish to seek legal advice.

ü Affirmative Advertising Efforts. 

Advertisers may make reference to protected classes, including race, in advertising which is either:

1. Part of an affirmative marketing program to attract persons to dwellings who would not ordinarily be expected to apply to the housing, or

2. Undertaken to remedy the effects of prior real estate advertising or marketing discrimination

ü Religious Groups. 

A limited exception allows religious groups or organizations to advertise:

1. Housing they operate on a noncommercial basis

2. Can state a preference for or limitation to members of their religion

3. If the religious group does not discriminate on the basis of race, color or national origin. However, such an advertisement may not state any preference other than a preference for members of the religion (e.g., one based on race, gender, or other protected class).

ü Private Clubs. A limited exception allows private clubs to advertise:

1. Housing it operates or owns incident to its primary purpose 2. Can state a preference for or limitation to members of the club 3. If the club is not in fact open to the public

Use of Photos and Drawings

The Fair Housing Act's prohibition against advertising that "indicates any preference, limitation or discrimination" has been interpreted to apply to the use of human models in advertising. Pictorial ad campaigns may not include only or mostly models of a particular race, gender, or other protected class.

You should review the advertising campaign for each development separately. You should be sensitive to advertising campaigns such as those which depict:

1. All or predominately models of a single race, gender or ethnic group 2. No families or children 3. Particular racial groups in service roles (maid, doorman, servant, etc.) 4. Particular racial groups in the background or obscured locations 5. Any symbol or photo with strong racial, religious, or ethnic associations 6. Minorities who are not residents of the complex

Advertising campaigns depicting predominately one racial group are particularly vulnerable to legal challenge if one or more of the following factors are present:

1. The complex is located in a neighborhood which is predominately white or known historically as being racially exclusive and the models are white

2. The complex is located in a neighborhood known to be a black or minority area and the advertising depicts minority-race models

3. The campaign includes a number of different ads, none or few of which include models of other races

4. The ads fail to contain Equal Housing Opportunity statements or logos, or logos which are not readily visible

5. The campaign runs over a long period of time, or involves ads published on many occasions

6. The ad campaign involves group shots or photos or drawings depicting many people, all or almost all of whom are from one racial group

7. The campaign involves full-page or color ads which are visually prominent.

Remember that real estate advertising may be illegal not only if it includes predominately white models, but also if it includes predominately minority models, particularly if the advertising involves complexes in neighborhoods or suburbs known to be welcoming to minorities.

The basic test is: Would the ordinary reader construe the advertising as sending a message of preference for or against a particular class of homeseekers?