Advertising Under the Fair Housing Act

In addition to discriminatory housing practices (such as refusing to sell or rent a dwelling, falsely denying the availability of a dwelling, and refusing to make a reasonable accommodation for a disabled person), housing discrimination laws prohibit advertising about the sale or rental of a dwelling in a discriminatory manner.

The Fair Housing Act makes it unlawful to discriminate in the sale, rental, and financing of housing because of race, color, religion, sex, handicap, familial status, or national origin. Section 804(c) of the Fair Housing Act 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.”

Liability under the Fair Housing Act for discriminatory advertising extends to include “advertising media, advertising agencies and all other persons who use advertising to make, print, or publish, or cause to be made, printed, or published, advertisements with respect to the sale, rental, or financing of dwellings which are in compliance with the requirements” of the Act. Thus, liability can extend to publishers, such as newspapers and directories, as well as to persons and entities who place real estate advertisements.

Publishers and advertisers are responsible for making, printing, or publishing an advertisement that violates the Acts on their face. As such, they should not publish or cause to be published an advertisement that, on its face, expresses a preference, limitation or discrimination on the basis of race, color, religion, sex, handicap, familial status, or national origin.

Advertising refers not only to published ads in newspapers but also to any other statements that are written, verbal, or non-verbal. Discriminatory advertisements include, but are not limited to, applications, brochures, signs, banners, photographs, symbols, human models, and spoken words and phrases that convey that dwellings are available/not available to a particular group of persons because of race, color, religion, sex, disability, age, familial status, national origin, or status with respect to marriage.

In determining whether advertising constitutes a discriminatory housing practice, courts have generally applied a “reasonable person” standard. This means that liability is incurred by a person or entity if they make an advertisement that indicates a preference and that preference is readily apparent to an ordinary reader.

The Department of Housing and Urban Development’s (“HUD”) Fair Housing and Equal Opportunity office has issued the following guidance to its field staff with regard to determining what does and does not constitute unlawful discrimination under the Fair Housing Act:

• Race, Color, National Origin: Real estate advertisements should state no discriminatory preference or limitation because of race, color, or national origin. The use of words describing the housing, the current or potential residents, or the neighbors or neighborhood in racial or ethnic terms (e.g., “white family home” or “no Irish”) will create liability under the Fair Housing Law. Advertisements that are facially neutral, however, will not create liability. Thus, complaints over use of phrases such as “master bedroom,” “rare find,” or “desirable neighborhood” are generally not filed.

• Religion: Advertisements should not contain explicit preference, limitation, or discrimination on account of religion. Advertisements that state preferences such as “no Jews” or “Christian home” will create liability under the law. Advertisements that use the legal name of an entity that contains a religious reference (for example, “Roselawn Catholic Home”), or those that contain a religious symbol (such as a cross), standing alone, may indicate a religious preference. If, however, an advertisement includes a disclaimer (such as the statement “This Home does not discriminate on the basis of race, color, religion, national origin, sex, handicap or familial status”) it will not violate the Fair Housing Act. Advertisements containing descriptions of properties (e.g., “apartment complex with chapel”) or services (e.g., “kosher meals available”) do not on their face state a preference for persons likely to make use of those facilities and are not violations of the Fair Housing Act.

The use of secularized terms or symbols relating to religious holidays such as “Santa Claus,” “Easter Bunny,” or “St. Valentine’s Day,” or phrases such as “Merry Christmas,” “Happy Easter,” or the like, do not constitute a violation of the Act.

• Sex: Advertisements for single-family dwellings or separate units in a multi-family dwelling should contain no explicit preference, limitation or discrimination based on sex. Use of the “term master bedroom” does not constitute a violation of either the sex discrimination provisions or the race discrimination provisions. Terms such as “master bedroom,” “mother-in-law suite” and “bachelor apartment” are commonly used as physical descriptions of housing units and do not violate the Fair Housing Act.

• Disability: Real estate advertisements should not contain explicit exclusions, limitations, or other indications of discrimination for persons with disabilities. An advertisement would be unlawful, for example, if it indicated “no wheelchairs.” Advertisements containing descriptions of properties (e.g., “great view,” “fourth-floor walk-up,” “walk-in closets”), services or facilities (e.g., “jogging trails”), or neighborhoods (e.g., “walk to bus-stop”) do not violate the Fair Housing Act. Advertisements describing the conduct required of residents (e.g., “non-smoking” or “sober”) do not violate the Act. Advertisements that describe accessibility features (e.g., “wheelchair ramp”) are lawful.

• Familial Status: Advertisements may not state an explicit preference, limitation or discrimination based on familial status. Advertisements may not contain limits on the number or ages of children or state a preference for adults, couples, or singles. Advertisements describing properties (e.g., “two bedroom” or “family room”), services or facilities (e.g., “no bikes allowed”), or neighborhoods (e.g., “quiet streets”) are not on their face discriminatory and do not violate the Fair Housing Act.

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