It’s 2017, and we’d never see a “Whites Only” ad for an apartment…Right??
Illegal practices have gotten more difficult to detect, but they still exist (in housing, employment, education, public accommodations, in private and public life).
Earlier this month, social justice advocates raised concerns with two real estate advertisements, and rightly so. Rather than describe the features of the house, the company attempted to paint a picture of the neighborhood by reference to religion, race, and ethnicity. Were the ads illegal?
Law Prohibits Housing Discrimination
Federal and state law forbid housing discrimination based upon race, color, sex, religion, national origin, disability or familial status.*
The prohibited practices apply to the sale, lease, negotiations, or financing of homes or apartments as well as vacant property. It also includes a prohibition against discriminatory advertising that purports to limit or prefer customers based upon race, color, sex, religion, national origin, disability or familial status. Both the company selling or leasing property AND publisher of the advertisement can be held liable for discrimination.
And while there are some limited exemptions, for certain single family sellers who do not use advertising, some religious exemptions, and some age-specific housing units, the prohibitions are broad and apply to most transactions.
Explicit vs. Implicit Discrimination
The ads arguably raised the question of explicit vs. implicit discrimination, both of which are illegal.
“Whites Only Housing” = explicit discrimination
“Only full-time, employed individuals need apply” = explicit discrimination
But what about implicit discrimination, where the ad doesn’t specifically limit sales or rentals to individuals based upon a protected class but implies a preference for or rejection of a class of individuals.
Think about these examples:
(1) An advertisement for a home builder that shows all white couples around a “Sold” sign.
(2) An ad that implies customers won’t have to smell ethnic cooking of their neighbors.
(3) An ad that states “Minutes from the Jewish Community Center.”
These are examples of suggested or implicit discrimination and might run afoul of the Fair Housing Act.
Think of it this way, if the ad describes the neighborhood by reference to religious landmarks, or describes the neighbors or absence of neighbors by implying race or another protected class, rather than the actual features of the house or the apartment, then it might be problematic.
Enforcement and Remedies
Remedies range from compensatory monetary damages, punitive damages, injunctive relief, and attorney’s fees as well as civil fines.
Injured parties have the option to file a complaint with local, state or federal administrative agencies, who will investigate and attempt to mediate a settlement if they determine illegal discrimination has occurred (which can sometimes include monetary awards and attorney fees in some cases) or they can file in state or federal court. The courts can award monetary compensation for those injured, assess civil penalties, and issue nonmonetary orders that have the effect of stopping the discriminatory practices and continued court supervision where needed.
An interesting note is that both the state and federal government employs “trained testers” who will pose as potential customers to uncover illegal discrimination. If only we did that for other types of discrimination…
* Indiana’s Housing Discrimination Act, Ind. Code 22-9.5-5 http://iga.in.gov/legislative/laws/2017/ic/titles/022/#22-9.5-5
The US Fair Housing Act, 42 U.S.C. §3601-et seq. https://www.law.cornell.edu/uscode/text/42/3604