Fair Housing Act: Words Matter in Advertisements

ORLANDO, Fla. – The Fair Housing Act protects people from discrimination when renting or buying a home, getting a mortgage, seeking housing assistance or engaging in other housing-related activities. It protects against discrimination because of race, color, national origin, religion, sex, familial status or disability. There can be additional protected classes, such as sexual orientation and gender identity, which are included in the National Association of Realtors® Code of Ethics Article 10. Additionally, Realtors should be aware of any county or city rules that could add even more protected classes, such as source of income, age, or actual or perceived status as a victim of domestic violence, dating violence or stalking.

Although the Fair Housing Act and related rules cover a wide range of behaviors that could be discriminatory, one area of heightened concern for Realtors is advertising. Advertising should be written and reviewed (preferably with at least one other person for an additional perspective) to ensure nothing in an advertisement could be construed as discriminatory against a protected class. After all, in any lawsuit or complaint based on an advertisement, the published words will take center stage, with very little room for someone to argue that the message they intended to convey was not discriminatory.

As with all Fair Housing-related issues, Florida Realtors recommends all members use an abundance of caution in advertisements. As a starting point, any mention of a named protected class will very often be a problem. For example, it would look very strange indeed to see national origin or religion mentioned in a real estate advertisement.

Some organizations have taken an extra step to list specific words and phrases into red (avoid), yellow (caution), and green (acceptable) categories. Some Multiple Listing Services may also screen for specific words as a tool to ensure people stay safely on the side of caution.

These lists of words are easily discoverable by using a search engine to find links to “fair housing word and phrase list.” Although this is a good starting point to think about how to carefully phrase advertisements, the list is only a tool and should not be confused as an absolute safe harbor, which is why this article does not include its own list of words and phrases.

For example, here are a few advertisements that don’t include any words on the “avoid” or “caution” list, but still resulted in actual lawsuits filed against members in recent years:

• “No section 8.” Although this is not a protected class at the federal level, a few sizeable local jurisdictions in Florida include source of income as a protected class. This means that, when a member in one of those jurisdictions adds “no section 8” to their advertisement, usually at the request of a landlord, they have made themselves a target of a lawsuit. To our knowledge, most lawsuits like this ended up with the agent or brokerage company paying to settle the case without going to trial.
• “No criminal convictions.” Although criminal convictions are not a protected class by themselves, a HUD memo published April 4, 2016, titled Office of General Counsel Guidance on Application of Fair Housing Act Standards to the Use of Criminal Records by Providers of Housing and Real Estate-Related Transactions. The memo argued that aggressively screening out all criminal convictions, regardless of underlying crime and when it occurred, could be a violation of the Fair Housing Act under a disparate impact theory. The memo mentions that “Across the United States, African Americans and Hispanics are arrested, convicted, and incarcerated at rates disproportionate to their share of the general population. Consequently, criminal records-based barriers to housing are likely to have a disproportionate impact on minority home seekers.” At least one lawyer in Florida has targeted real estate licensees who are likely unaware of this HUD memo and has sued dozens of real estate companies over this issue.

Since an interpretation of what may be considered discriminatory is more a concept than a yes/no pre-made list, there is also a healthy amount of gray area. If you find yourself unsure of whether a phrase like “within walking distance of the beach,” or “no students” could be discriminatory (both phrases land on the “caution” list for many organizations), Florida Realtors members are welcome to call the Florida Realtors Legal Hotline to discuss a specific topic in more detail. We will almost certainly err on the side of caution as we discuss these issues.

Hopefully, members calling about their own advertisements before they are published will discover that there’s an objective, non-discriminatory way to describe the property that avoids the issue altogether and results in a safer advertisement that honors both the letter and spirit of the law.

Joel Maxson is Associate General Counsel for Florida Realtors

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