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Responsible Advertising: Understanding the Impact of the Fair Housing Act on Advertising

The content in this web article is for education purposes only. It should not be construed as legal advice as it is intended for information purposes only. Please contact professional counsel for legal advice and legal questions pertaining to your housing advertising practices.

2018 marks the 50th anniversary of the passage of the federal Fair Housing Act of 1968; yet, discriminatory advertisements that violate fair housing laws persist. In the digital age, there are more ways than ever to advertise about and search for housing. From word of mouth and lawn signs to apartment rental websites and social media, new mediums to advertise emerge daily. Did you know that discrimination in housing advertisements is illegal under the Fair Housing Act?[1] It is important to know and understand the Fair Housing Act (FHAct) and how it relates to advertising, so you can ensure you are practicing responsible, nondiscriminatory advertising.

The FHAct prohibits discrimination in housing-related transactions, including advertising, based on race, color, religion, national origin, sex, disability, and familial status (known as “protected classes”). When advertising housing, it is illegal to specify a preference or limitation or to alter the terms and conditions of housing based on someone’s membership in any of the protected classes. It is also illegal to target the distribution of advertisements on the basis of any protected characteristic. Many state and local laws have more expansive fair housing protections that prohibit housing discrimination based on additional protected classes, such as sexual orientation, marital status, source of income, and use of Housing Choice Vouchers, so it is very important to become familiar with your local and state fair housing laws as well.

How does the Fair Housing Act define “advertisement”?

Advertisements have been traditionally consumed through television, radio, billboards, and newspapers. However, advertising has changed dramatically since the passage of the FHAct, and there are more platforms on which to advertise than ever before. Under the FHAct, the definition of advertising is broad and includes print and online advertisements, materials such as brochures or applications, television and radio ads, and even speech. All verbal communication that occurs in person or over the phone to a prospective tenant, homebuyer, or borrower is considered a form of advertising. Further, discriminatory advertisements are not subject to exceptions provided under other sections of the FHAct, such as owner-occupied housing or multifamily housing with four or fewer units. All housing is covered! The law prohibits any illegal advertising for an apartment, home, mortgage loan, homeowners insurance, or any real estate-related transaction.

Examples of Discriminatory Advertising

While there have been clear, legal housing protections for the last 50 years, discriminatory advertisements that violate the FHAct persist. Examples include statements such as “no kids,” “Christian housing,” and “English speakers only,” all of which could be considered unlawful forms of advertising. More sophisticated marketing tools can also create avenues to discriminate in advertising, such as targeted marketing that excludes persons in particular protected classes or certain neighborhoods because of the predominant race or ethnicity of the residents. In jurisdictions that prohibit discrimination based on source of income, it would be a violation to post an advertisement that states “Section 8 not accepted.”

Fair Housing in the Digital Age

When the FHAct was written in 1968, we could not have anticipated how technology would change and impact advertising practices. Today, a lot of advertising happens with the click of a finger. Whether through rental websites, social media, or new phone applications, it is important to note that Section 804(c) of the FHAct makes it illegal “to make, print, publish, or cause to be made, printed, or published, any notice or statement with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, national origin, sex, disability, or familial status.” This includes advertising on web-based platforms. If you are advertising online, understand that including or excluding certain audiences or neighborhoods in the settings of your advertisements could be discriminatory.

Responsible Advertising Guidelines

As a housing provider, it is your responsibility to know the federal, state, and local laws in your area and to ensure compliance—much like restaurant owners are expected to adhere to health codes and other laws regulating their business. Ignorance of the law is not a legal defense for discrimination.

Ignorance of the law is not a legal defense for discrimination.

Basic advertising guidelines:

1. Make sure your advertising is compliant with fair housing laws by focusing on the property and the amenities in your rental listing description—NOT on who you think an ideal renter would be.
2. Do not make statements that exclude persons in protected classes or express a preference for one personal characteristic over others.
3. Always include the fair housing logo and/or the “Equal Housing Opportunity” slogan in your advertising.
4. Do not exclude from your marketing campaign persons in protected classes, such as families with children, people of certain racial or ethnic backgrounds, persons with disabilities, etc.
5. If you feature human models in your advertisements, ensure that the images are inclusive and representative of all communities that need access to housing.
6. Always give truthful information about the availability, price, amenities, and features of a housing unit.
7. Advertising Goals: Gain important, critical exposure to consumers. Maximize positive outcomes. Broaden—don’t restrict—your market.

When it comes to advertising, the key to success should be inclusion, not exclusion! Learn more about best practices for advertising by viewing our webinar, Fair Housing: What you need to know.