How to Avoid Fair Housing Problems in New Media

This month, we're going to review fair housing rules as they apply to new media advertising and marketing. The Internet, Facebook, Twitter, YouTube, Flickr, Foursquare…the options for social networking are endless—and appear to be increasing every year.

To reach the millions of adults currently using social media for personal and business purposes, community owners and property managers are looking online for ways to boost their advertising and marketing efforts. Among other benefits, marketing experts say that an effective social media marketing campaign expands opportunities to attract new prospects, engage current residents to encourage renewals and generate referrals, and recruit tech-savvy potential employees.

Despite these potential benefits, efforts to join the online community vary widely. Some “early adopters” have already established an integrated online presence, but many lag far behind; most fall somewhere in the middle. Whatever the reason—limited financial resources, lack of technical skills, or privacy concerns—the industry's adoption of social networking is a work in progress.

Wherever your community may be in the process, it's easy to get so focused on the potential marketing benefits that you overlook fair housing considerations. Often new media marketing is driven by tech-savvy professionals, but—regardless of the bells and whistles on your Web site or Facebook page—it's up to you to ensure compliance with old-school fair housing principles.

This month, we'll explain the basics of fair housing advertising and marketing rules, and suggest six rules for applying those basics to new media. Then you can take the COACH's Quiz to see how the rules apply in the real—albeit online—world.

WHAT DOES THE LAW SAY?

The Fair Housing Act (FHA) makes it unlawful to discriminate in housing based on race, color, religion, sex, national origin, familial status, or disability. In addition, some state and local laws offer fair housing protections based on other characteristics, such as marital status, age, sexual orientation or identity, and source of income.

Fair housing law targets various discriminatory practices that either expressly or implicitly limit the housing choices of those protected under the law. For example, it is unlawful to exclude or otherwise discourage prospects from living in a housing community or to provide them with different terms, conditions, or privileges of the housing because of a protected characteristic.

In a separate provision, the FHA also makes it unlawful “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.”

These provisions apply broadly to all spoken, written, and online statements—including words, phrases, pictures, symbols, and other graphic images—that suggest that the housing is not available to particular groups of people because of a protected characteristic, according to HUD. The test is whether the statement discourages an “ordinary reader or listener” from living in the community by suggesting that it has a preference for or discriminates against prospects, applicants, or residents based on a protected characteristic.

Though the law was enacted well before the Internet became part of daily life, most experts agree that communities are accountable for discriminatory statements in any form of communications—whether online or in traditional media sources. Indeed, HUD has stated that the FHA's ban on discriminatory advertising applies equally to traditional forms of media and the Internet.

In addition to going after those responsible for “making” discriminatory statements, the law targets anyone “publishing” them in order to discourage the dissemination of discriminatory advertising. Even today—despite the ongoing shift from print media to online advertising—fair housing enforcement officials continue to pursue claims against traditional media outlets for publishing discriminatory statements.

Example: In August 2011, a weekly want-ad newspaper distributed along Mississippi's Gulf Coast agreed to pay $15,000 to settle allegations that it violated the Fair Housing Act by publishing 10 advertisements for rental housing that stated illegal preferences against families with children, according to an announcement by the Justice Department.

The case originated in a complaint filed by a woman with three children who was searching for housing for her family. Allegedly, the woman's search led her to the newspaper, in which she read an ad offering a house for rent with the proviso, “no children.” She contacted a fair housing group, which conducted testing of the property advertised and monitored the advertisements published by the newspaper.

Although it denied liability, the newspaper agreed to settle the case by paying $10,000 to the fair housing group, $1,500 to the woman affected by the ad, and $3,500 in a civil penalty to the United States. The case continues against the landlord and her agent for discriminatory statements they allegedly made to fair housing testers.

“Newspaper ads that discriminate against families with children are illegal and unacceptable,” John Trasviña, HUD Assistant Secretary for Fair Housing and Equal Opportunity, said in a statement. “HUD and the Department of Justice will ensure that publications fulfill their obligation under the Fair Housing Act to reject discriminatory advertisements that limit housing opportunities for families with children” [U.S. v. Penny Pincher, Inc., August 2011].

The law is less clear when it comes to community liability for discriminatory statements on the Internet and social media platforms. Fair housing experts warn that communities may be liable regardless of where they post discriminatory statements in new media sources. The clearest example is posting discriminatory ads on third-party Web sites, such as Craigslist. Communities have paid thousands in settlements and penalties when investigators have tracked down online discriminatory advertising to its source.

The courts haven't settled the issue definitively, but experts also believe that communities are accountable for any discriminatory content they post on company Web sites, Facebook pages, and other forms of media. Nevertheless, it's unclear whether a community may be held liable for discriminatory comments posted by third parties on the community's Web site or Facebook page. The answer may depend on how the courts interpret another federal law, the Communications Decency Act (CDA), a federal law that limits the liability of an “interactive computer service” for content originating with a third party of the service. (See Conflicting Federal Laws Lead to Uncertainty.)

6 RULES FOR AVOIDING FAIR HOUSING PROBLEMS IN NEW MEDIA

Rule #1: Comply with Fair Housing Rules in Online Advertising

In turning to new media sources to advertise your community, remember the basic fair housing rules banning discriminatory statements. Those rules prohibit communities from making, printing, or publishing any statement that indicates a preference for or against anyone based on a characteristic protected under federal, state, or local law.

Consequently, it's unlawful to advertise—whether in print or online—that a vacancy is unavailable to members of protected classes. Most notorious are ads expressing a preference against families with children, according to the National Fair Housing Alliance, which has reported rampant discrimination against families with children in online advertising.

Furthermore, fair housing advocates urge action to combat discriminatory online advertising based on source of income, in violation of state and local laws. State and local enforcement officials are taking notice—and cracking down on community owners and property managers for posting online rental ads with statements such as “No Section 8.”

Example: In September 2011, a Massachusetts property management company agreed to settle allegations that it posted rental advertisements on Craigslist that discriminated against prospects with children or who received rental assistance, according to a statement by Massachusetts Attorney General Martha Coakley. The settlement is the result of a continuing statewide investigation by the Attorney General's Office into reports of widespread discriminatory housing advertisements on the Internet.

The complaint claimed that the company posted ads that a vacant unit wasn't available to applicants with children under the age of 6 or with Section 8 vouchers. Allegedly, a state investigator posed as a father with a young child when he called the company, but he was steered away from renting the advertised property and told that he would have to sign a release form before he could rent the property. Under Massachusetts law, it's illegal to post advertisements that indicate a discriminatory bias against persons with children or who receive rental assistance; state lead paint law also bans discrimination based on the landlord's desire not to remedy lead-based paint hazards due the presence of children under 6 in the household.

Under the settlement, the company agreed to pay $10,000 to the Commonwealth, with $3,000 suspended pending compliance with a broad range of measures intended to prevent future fair housing violations.

Rule #2: Avoid Pitfalls on Community Web Site

To varying degrees, communities have taken marketing efforts to the next level to maintain an online presence. Often, the first step is to create a community Web site, which may include pictures and descriptions of the community and its amenities, available floor plans, maps and features of the neighborhood, and information about how to contact the community.

Since the basic purpose of a Web site is to depict the advantages of living in the community, it's the same as traditional forms of advertising under fair housing law, according to fair housing experts Nadeen Green and Doug Chasick. When selecting content for the Web site, be sure that any words, symbols, or pictures don't suggest that your community has a preference—for or against—anyone based on characteristics protected under federal, state, or local law.

The Web site may describe the community, its units, and features—but not the kind of people who may want to live there. Avoid phrases like, “Perfect for singles,” which imply a preference against families with children. Maps and directions are helpful, but avoid references to religious institutions or racially significant landmarks.

Posting pictures of people, including residents, employees, and others also raise potential fair housing concerns. Just as in traditional advertising, it's unlawful to use “human models” in photographs, drawings, or other graphics to indicate exclusiveness because of race, color, religion, sex, handicap, familial status, or national origin.

Before posting pictures online, take a step back to look at them—it's a problem if they feature white-only subjects because it may imply an unlawful preference against racial or ethnic minorities. Instead, choose pictures that reflect diversity so anyone visiting the site would understand that the community is open to all without regard to race, color, national origin, religion, sex, disability, or familial status.

Finally, just as you would do in traditional advertising and marketing materials, use the Equal Housing Opportunity logo or statement in online ads and on your community's Web site to demonstrate your commitment to comply with fair housing law.

COACH'S TIP: Don't post pictures of anyone without first obtaining permission. Ask for legal help to develop a standard release form, which you can use whenever you want to include pictures in your advertising and marketing materials. For a pool party picture, ask attendees to sign a release form with multiple signature lines that allows use of their pictures in print and online media. If residents decline to sign, they of course can still attend the pool party, but you won't be able to use photographs that show them.

Rule #3: Develop a Social Media Policy

A coordinated strategy is the best way to take advantage of all the benefits of social media tools, which may include a company Web site, 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 identify the one “ultimate” owner of all social media activity, who would 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 failure to do so.

Include fair housing concerns, so everyone understands that the ramifications of posting comments or pictures that imply a preference for or against anyone based on their 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.

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.

Finally, be prepared to react quickly to any offensive or discriminatory comments posted by third parties on your Web site, blog, or other social media sites. Include strong language in a disclaimer on your Web site, blog, or Facebook page that you have the right to remove any posts or comments that are discriminatory, 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.

Rule #4: Don't Abandon All Traditional Media

The benefits of online marketing may be alluring, but don't abandon all traditional forms of media. Marketing experts say that a multipronged approach—using traditional and new media—is the most effective. In a September 2011 study, the Pew Research Center reported that newspapers tied with the Internet as a source of housing news. Indeed, marketing experts point out that online marketing linked with print advertising can improve the effectiveness of both to maximize exposure and reinforce your brand. For example, use of those square bar codes—known as QR (“Quick Response”) codes—in your print advertising can drive traffic to your community's Web site via smartphone technology.

From a fair housing perspective, abandoning traditional forms of media could raise questions of selective marketing. Fair housing law prohibits communities from selecting media that deny particular segments of the housing market information about housing opportunities because of race, color, religion, sex, disability, familial status, or national origin.

With the focus on the millions who have online access—through computers, smartphones, and other mobile devices, it's easy to overlook the significant number of people who don't, many of whom are older or members of minority groups. Combining both traditional and new media demonstrates that your community has a broad, inclusive marketing strategy to reach a wide, diverse audience.

Rule #5: Don't Resort to Email Profiling

Be on guard to avoid accusations of “email profiling,” advises Green. Historically, fair housing testing involved sending paired testers—different only in a particular protected characteristic, such as race—to visit a property to see if they were treated differently. Fair housing organizations still employ that tactic, but then added telephone campaigns to uncover “linguistic profiling—treating testers differently based on vocal qualities that suggested their race, ethnic background, or country of origin.

Recently, Green says, testers have moved on to look into “email profiling—that is, unlawfully screening prospects based on information gleaned from their email address or online guest cards. Often, email addresses can provide insight into a prospect's race, color, national origin, gender, familial status, religious affiliation—even disability, she points out.

Ignoring or delaying response to a prospect's inquiry based on a protected characteristic gleaned from his email address could lead to a fair housing complaint. To prevent such problems, Green advised communities to follow policies and procedures to respond promptly to all email and guest card communications. In addition to the timeliness of the response, Chasick says, it's important to maintain consistency in the type of information in—and format of—each email response.

Rule #6: Keep “TMI” at Bay

The wealth of information available online can be both a blessing and a curse. A quick online search could turn up all kinds of information about prospects and residents, including their race, sex, age, income level, and other demographic characteristics. Furthermore, checking out their Facebook pages often provides TMI—Too Much Information—about their private lives, including photos, interests, friends, group affiliations, relationships, and lifestyle choices.

It may be tempting to access this information, but it could lead to fair housing trouble if it's misused to weed out applicants or renew a resident's lease, warns Green. The key to fair housing compliance is consistency, so decisions about who may live at your community should be based on your standard policies on applicant screening and resident renewal, not subjective judgments about people based on personal information you may learn online.

Fair Housing Act: 42 USC §3601 et seq.

COACH Sources

Erica Campbell: Director of Marketing, For Rent Media Solutions, 150 Granby St., 16th fl., Norfolk, VA 23510; (757) 351-7365; erica.campbell@forrent.com.

Doug Chasick, CPM®, CAPS, CAS, Adv. RAM, CLP, SLE, CDEI: Senior VP, Multifamily Professional Services, CallSource, (888) 222-1214; dchasick@callsource.com

Nadeen W. Green, Esq.: Senior counsel, For Rent Media Solutions, 294 Interstate N. Pkwy., Ste. 100, Atlanta, GA 30339; (770) 801-2406; nadeen.green@forrent.com.

Robin Hein, Esq.: Attorney at Law, Fowler, Hein, Cheatwood and Williams, P.A., 2970 Clairmont Rd., Ste. 220, Atlanta, GA 30329; (404) 633-5114; RobinHein@ApartmentLaw.com.