Kevin Sullivan

Complying with the Fair Housing Laws

Certain provisions of the federal Fair Housing Act (Title VIII of the Civil Rights Act of 1968) prohibit discrimination in the advertising of housing opportunities. It is important to note first that the advertising prohibitions in the Fair Housing Act and comparable state law apply to anyone that participates in any fashion in the “marketing, printing, or publishing” of real estate advertising. Therefore, publishers, advertising agencies, sales firms, real estate professionals and management companies may be liable, as well as their clients, if they play any role in creating, distributing or publishing allegedly discriminatory advertising.

Since 1972, HUD has offered guidelines for complying with the Fair Housing Act. These guidelines, although they were once published as regulations, no longer carry the force of law. However, courts frequently look to the HUD guidelines when interpreting the Fair Housing Act and will often defer to HUD’s interpretation of the statute.

1. Human Model Advertising Guidelines

The HUD guidelines expressly state that human models in photos or drawings “may not be used to indicate exclusiveness.” The guidelines also provide the following standard for ads containing human models:

If models are used in display advertising campaigns, 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. Models, if used, should 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, sex, handicap, familial status, or national origin, and is not for the exclusive use of one such group.

An exact correlation between minority representation within the closest metropolitan area and an advertising campaign is not required. Rather, the standard requires that the human models depicted in advertising campaigns be generally reflective of the population make-up of the metropolitan area in which the ads are published. By referring to “advertising campaigns,” the guidelines require an inspection of ads and other marketing material over a period of time and on a project-by-project basis. Therefore, the repeated publication of ads for a particular project over a period of months, almost all of which use one or two white models and no models of any other race, could be found to be in violation of the law. Also, an advertiser may be in violation of the law if it published virtually all-white advertising for a project in a predominantly white community, and separately published integrated advertising for a project in a community with a substantial minority population.

The guidelines also refer to the “metropolitan area” in which the advertising is published as the base for determining what is a reasonable representation of minorities in an ad campaign. Therefore, it would not be sufficient to publish advertising which merely reflects the racial make-up of the particular neighborhood where the project is located. The HUD regulations further warn against targeting to one racial segment of the community without complementary advertising directed at the other groups. In addition, the guidelines caution against the strategic placement of advertising materials in only certain geographic areas that are predominantly made up of one racial group. Any selective advertising should be used as part of an overall, inclusive advertising strategy that places advertising in a variety of locations and media which seek to reach all groups in the community. It is acceptable, and usually prudent, to target some minority publications as part of the overall marketing campaign.

2. Equal Housing Opportunity Symbols

HUD guidelines provide that all advertising for the sale, rental or financing of housing should contain an Equal Housing Opportunity logo and statement. This serves as a means of informing readers that the property is available to all persons. Equal Housing Opportunity logos and statements should be included in advertising of all types, including all of a project's written marketing materials such as brochures and cards for mailings. To ensure compliance, it is advisable to follow the HUD standards regarding the specific sizes of the logos. All equal housing opportunity logos should be a visible part of the ad and the print should be in type size comparable to other type used in the ad.

What You Can Do

First, review all of your current advertising to assure compliance with the fair housing laws. Second, develop and enforce a written nondiscrimination policy in the area of real estate advertising. Third, train your employees and inform your consultants about the importance of fair housing and the specific requirements of the law. Your fair housing policies should provide clear guidelines for your employees and consultants to follow. It should make clear to them that your institution or company intends to comply with its legal obligations and will not tolerate any actual or apparent discrimination.

Fair housing claims can lead to large verdicts. A plaintiff can receive compensatory and punitive damages as well as their reasonable attorney’s fees under the applicable statutes.