Three Tips on Advertising Without Violating the Fair Housing Act
When you place ads to fill vacancies or waiting lists at your tax credit site, what those ads say or how they depict your site can greatly influence who responds. For this reason, fair housing advocacy groups pay close attention to ads for rental housing. If you say or depict the wrong thing, you could find yourself the target of a lawsuit or HUD enforcement action. And if your state housing agency discovers a fair housing violation, it must report you to the IRS for noncompliance.
Two common advertising strategies that often get owners and managers into trouble are ads that describe the ideal applicant and ads with pictures of the site showing human models. We’ll tell you how these practices get owners and managers into trouble. Also, we’ll give you tips on how you can help make sure that ads for your tax credit site attract applicants and not lawsuits.
Basics on the FHA and Advertising
The Fair Housing Act (FHA) doesn’t come into play only when owners and managers reject applicants. If you run discriminatory ads, you’ll also be violating the FHA. Advertising under the FHA doesn’t just mean ads in print. The law says you can’t “make, print, or publish. . . any notice, statement, or advertisement . . . that indicates any preference, limitation, or discrimination based on a person’s race, color, religion, sex, handicap, familial status, or national origin.” That includes such things as applications, flyers, brochures, deeds, signs, banners, posters, billboards, websites, and even pictures in your office.
Advertising for rental housing is discriminatory if an ordinary reader would get the impression from your ad that you prefer applications from households of a particular race, color, religion, sex, or national origin, or that you discourage applications from households with children or disabled members.
It doesn’t take much for a statement to be taken out of context or representation to be misinterpreted. If your leasing office is decorated with many large pictures of the residents participating in the site’s facilities and amenities, such as exercising in the weight room, swimming, and playing volleyball and tennis, and all of the pictures are of white, young, “professionals,” an ordinary person could interpret this as expressing an illegal preference for a particular class of renters.
Tip #1: Don’t Describe Ideal Applicants
To prevent fair housing complaints and lawsuits, don’t make statements in your ads that describe the ideal applicant. You can market your site just as effectively by describing the site instead of the preferred applicant. For example, you can describe your site’s superior location, amenities, attractiveness, and so on. Statements encouraging a particular kind of applicant can easily discourage applicants in one or more of the FHA’s protected groups.
In the past, it was common for owners and managers to specify their preference for a particular kind of applicant with phrases such as “perfect for…” They did this to narrow the field of applicants to those they considered most desirable. At the very least, such a practice is contrary to the spirit of the FHA, which is clearly aimed at keeping open the door to any and all applicants.
Descriptions of ideal applicants sometimes flagrantly violate the FHA. For example, an ad stating, “Perfect for single Christian women” suggests that the owner discriminates on the basis of applicants’ familial status, religion, and sex. But less blatant phrases also can prompt lawsuits, so it’s best not to discuss the ideal applicant at all.
Tip #2: Don’t Use Models
Although it’s not illegal to use human models in your ads (for example, a photo of “residents” on a patio), your best bet is to avoid this practice. Many FHA complaints and lawsuits have involved the use of human models in ads. In fact, FHA complaints and lawsuits involve ads that depict models of a single race. To avoid race discrimination charges, owners and managers who elect to use models must show both the majority and minority races at their sites. Also, the numbers of those shown should roughly correspond to the proportion of each race at the site. But that’s all more easily said than done. For example, there’s no easy-to-apply test to determine whether particular minority groups at your site are small enough that they may safely be left out of ads that include models.
Also, many FHA complaints and lawsuits involve the use of models of only one sex, which can be challenged as sex discrimination; or the use of only adults or seniors, which can be challenged as familial status discrimination. To avoid this kind of liability, you must include models of both sexes and of children.
HUD regulations require only that models be of both majority and minority races and of both sexes. But the FHA also prohibits discrimination for reasons other than race and sex. A few cases have involved the use of models that could suggest an intent to discriminate on the basis of religion, national origin, or disability. For example, a group of models who are all wearing crosses around their necks might suggest that you discriminate against non-Christians.
While it’s not impossible to comply with all of these factors, many owners and managers find it impractical because of the amount of planning and review needed and the time and expense of finding the right models.
Tip #3: Include Fair Housing Logo, Statement, or Slogan
HUD will consider your use of certain kinds of advertising words and slogans to be evidence of your compliance with the FHA. For example, using HUD’s “Equal Housing Opportunity” or fair housing logo in your ads and on your website will be viewed with approval. Displaying a fair housing poster in your office is another way to advertise in a positive manner.
The use of the logo isn’t required. But if your ads are challenged on the grounds that they violate the FHA, use of the fair housing logo, statement, and/or slogan in accordance with these guidelines will count in your favor with HUD’s fair housing staff.
Use of logo. The equal housing opportunity logo is a picture of a small house with the words “equal housing opportunity” directly beneath it. You can download the logo for printing and uploading to your website at https://www.hud.gov/library/bookshelf11/hudgraphics/fheologo.
HUD says the fair housing logo may be used in any space ads or box ads and also in any other advertising that contains a logo (for example, a logo showing your site’s name). In space or box advertising, the fair housing logo should meet the following size requirements:
Size of Ad Size of Logo
½ page or more 2” × 2”
⅛–½ page 1” × 1”
4 column inches–⅛ page ½” × ½”
If other logo types are also used, HUD says the logo should be equal in size to the largest of the other logos used. If no other logo is used, the type should be in bold display face and “clearly visible,” HUD says. Obviously, use of the logo doesn’t apply to nonvisual advertising.
Use of statement. The fair housing statement reads: “We are pledged to the letter and spirit of U.S. policy for the achievement of equal housing opportunity throughout the nation. We encourage and support an affirmative advertising and marketing program in which there are no barriers to obtaining housing because of race, color, religion, sex, handicap, familial status, or national origin.”
The fair housing statement may be used in space or box ads in which no logos appear, together with, or in place of, the fair housing logo. The statement should occupy 3 percent to 5 percent of the ad, HUD says.
Use of slogan. The fair housing slogan is “Equal Housing Opportunity.” It may appear alone in line ads that are less than 4 column inches (one column 4 inches long or two columns 2 inches long) of a page in size. HUD says that you may omit the fair housing slogan from line ads less than four column inches long if your ad is grouped with other ads under a caption stating that the housing is available to all without regard to race, color, religion, sex, or national origin. But, in this case, you may want to include the fair housing slogan in your ad anyway. It’s not wise to rely on the newspaper or other media where you run your ads to make sure that this requirement is met. The media you’re dealing with have an incentive to conserve space to sell to other paying advertisers, and so they may not ensure that the language that heads the column is legible, as HUD requires it to be.