Some Thoughts on the Real Estate Advertising and the Fair Housing Act

Legal

Some Thoughts on the Real Estate Advertising and the Fair Housing Act
by Robert  D.  Butters



The use of human models in real estate display advertising has been one of the litigation "hot buttons" for private housing organizations over the last several years. Major cases have been filed in New York City, Washington, D.C., Cincinnati and Chicago. While these cases have met with varying results, a general rule seems to be evolving that the exclusive use of white human models in an advertising campaign that spans several weeks or months can, at the very least, raise a triable issue concerning whether the advertising agency who designed the advertisements, the real estate provider whose properties are advertised, or even the newspaper who published the advertisements, has violated the Federal Fair Housing Law by expressing a "preference" for white buyers, tenants or occupants of the advertised housing.

As a result, all entities involved in advertising real estate for sale or rent should be sensitive to any exclusionary impression an advertisement might make upon an "ordinary reader." In this regard, real estate advertisers should assess the particular impact of the advertisement upon an "ordinary reader" who is a member of a racial, religious or ethnic minority group, as opposed to an "ordinary reader" who is a demographic amalgamation of the entire population that will likely view the advertisement. Common sense therefore dictates that, when a decision is made to portray human models in an advertising campaign, the individual photographs should present a mixture of individuals from different racial groups. Alternatively, if family groupings are to be presented, multiple advertisements should be presented that include photographs of non-white as well as white families.

Having said this, the issue is often raised concerning whether the inclusion of non-white models must be in proportion to the percentage of non-white persons in the general population within which the advertisement is circulated. Courts that have been asked to impose such a "proportionality" rule have consistently refused to do so. Instead, the courts have simply restated the rule that the advertisement’s legality or illegality will be determined by whether an exclusionary impression is created in the mind of the "ordinary reader"--not whether the human models used in the advertisement are in proportion to demographic ratios in the general population.

Representatives of housing groups also have argued, from time to time, that a housing provider can violate the Fair Housing Law if it ceases the use of human models altogether and instead simply depicts photographs of the housing itself (so-called "sticks and bricks" advertising). This argument, however, is without any basis in generally accepted fair housing principles. The premise of all of the cases that have suggested that the exclusive use of white human models can violate the Fair Housing Law is that the use of the human models of a single race conveys an impression that only persons who have the same racial or ethnic characteristics as the models are welcome to buy or rent the advertised housing. If human models do not appear at all in the advertisement, it is hard to comprehend how the law prohibiting the expression of a racial or ethnic preference can be violated unless one is prepared to argue the ludicrous proposition that the complete absence of any human models sends a signal that all human beings, of whatever racial or ethnic background, are unwelcome to apply.

Some may nevertheless argue that if an advertiser previously used exclusively white human models in its advertising and then shifted to "sticks and bricks" advertising, this change can be viewed as a suggestion that the advertiser was aware that his or her previous use of all white models was indeed discriminatory. The difficulty with this argument is that, even if it were true, the same argument could be advanced against an advertiser who used all white models and then switched to racially and ethnically diverse models. In either case, someone could argue that the switch was triggered by an awareness that the previous advertisements sent a discriminatory message. If one were truly interested in eliminating discriminatory housing practices, it would seem that one would want to encourage advertisers to switch away from the exclusive use of white human models to some less discriminatory alternative, such as "sticks and bricks," rather than cite the change in policy as evidence that the prior advertising was discriminatory.

Another logical underpinning for the argument that a switch from the exclusive use of white human models to "sticks and bricks" advertising is discriminatory is the notion that the Fair Housing Law compels advertisers to use human models in their advertisements, and that the models used must reflect all of the racial and ethnic groups in the general population. This argument is based upon the unfounded premise that the Fair Housing Law is not intended to eliminate race conscious advertising practices, but rather is intended to regulate real estate advertising to insure that it includes express race conscious appeals to all racial and ethnic groups in the general population. The notion that the Fair Housing Law mandates race conscious, rather than color blind, marketing of real estate has been repudiated by every court that has had an opportunity to consider it.

In sum, the best advice one can give to real estate advertisers is to be particularly sensitive to whether your advertising is sending an exclusionary message either in the choice of human models, if models are indeed utilized, or in the words chosen to describe the housing or its location. By focusing upon the elimination of any exclusionary inferences that might be raised by the advertising, real estate advertisers should be able to reduce, if not eliminate, their risk of fair housing advertising liability. The effort to eliminate exclusionary inferences, however, need not include a descent down the "slippery slope" of numerical proportionality or the obligatory use of multi racial human models when other types of advertising is deemed more appropriate.


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Robert D..Butters. All right reserved. For information contact Frog Pond at 800.704.FROG(3764) or email susie@frogpond.com.