For real estate developers, leasing and property management teams, apartment marketing agencies, and in-house real estate marketers alike, fair housing requirements have been an evolving consideration when it comes to how we do our jobs. With guidelines still emerging and clarifying, especially for the digital space, this topic can sometimes feel like a moving target. Regardless, it’s essential to put in the time and attention required to understand how legislation like the Fair Housing Act (FHA) works to reduce housing inequality across factors like race, disability, and national origin.
Our goal with this article is not to replace your legal counsel, but to provide our learnings and recommendations for FHA-compliant apartment marketing that supports a more equitable housing market. Our goal is to empower you with a better understanding of how you can not only act within the guidelines of FHA law, but more importantly, how you can avoid inequitable impact toward disadvantaged groups when you market your housing to your audience. After all, inequitable impact can occur more easily than you might think, and much of it is done unintentionally. But take heart, real estate marketers; a little extra effort and consideration can go a very long way.
So let’s start by introducing the Fair Housing Act, then we’ll discuss our recommendations and action items for marketers like you.
What is the Fair Housing Act?
The Fair Housing Act prohibits the making, printing, and publishing of advertisements that indicate a preference, limitation, or discrimination because of race, color, religion, sex, disability, familial status, or national origin.
It’s designed to not only outlaw explicit housing discrimination against these protected classes of people, but also to reduce housing inequality that may be caused in unintentional or subtle ways.
Housing Inequality refers to a disparity in housing availability and quality across variables like race, class, disability, and more. Housing inequality is typically a result of systemic factors both past and present, from Red-lining to wage inequality.
Housing inequality may include…
- less housing available to certain groups
- less affordable housing available than demand requires
- less access to local resources (e.g. schools, parks, transportation, social services) for certain groups due to where they predominantly live
- and more.
History of the Fair Housing Act
The FHA is considered amongst the last major acts of the ‘60s Civil Rights Movement. It was called for by civil rights activists of the 60’s including Martin Luther King, Jr., who demanded an end to redlining and other discriminatory housing practices that were preventing many Black and Latinx people from renting in certain neighborhoods. The act had been introduced to Congress when MLK was assassinated on April 4th, 1968, increasing pressure on Congress to pass the bill. It was then passed prior to MLK’s funeral.
But the FHA didn’t end housing inequality. While it has positively impacted many Black and brown renters and homeowners, a variety of systemic factors still result in housing inequality today. For example, the FHA did little to disrupt a trend of “white flight” between 1950 to 1980, when the Black population in America’s urban centers increased from 6.1M to 15.3M. During this time, whites moved out to the suburbs, taking many of the employment opportunities Black people needed into communities where they were not welcome.
Since its initial passing, a number of amendments and provisions have expanded the language of the FHA. Notably, in 1988, Congress passed the Fair Housing Amendments Act, expanding the classes protected by the act to include disability and familial status (e.g. people currently pregnant or with children).
During the Obama administration, the AFFH (Affordably Furthering Fair Housing) provision of the FHA was introduced, which expanded both accountability and resources given to cities and regional governments receiving HUD (Dept. of Housing & Urban Development) funding. These rules and resources were designed to Affirmatively Further Fair Housing by incentivizing fair housing efforts at the governmental level. However, in 2020, the Trump administration amended this provision, rolling back most of the accountability and resources provided by the provision. This change makes it less likely for fair and affordable housing to be built, but it doesn’t ultimately impact a marketer’s responsibilities to either the FHA law or to ethical ideals.
Protected Classes Under the Fair Housing Act
Race, color, religion, sex, disability, familial status, and national origin are all protected classes under the FHA.
Many state and local laws have more expansive fair housing protections that prohibit housing discrimination based on additional protected classes, such as sexual orientation, marital status, source of income, and use of Housing Choice Vouchers.
In some cases, political affiliation may also be a protected class according to a webinar by the National Fair Housing Alliance.
Below are a few examples of who and what these protected classes cover and don’t cover.
What Counts As “Advertising” Under the Fair Housing Act
It’s important to realize that under the FHA, the definition of advertising is actually very broad. It includes…
- print and online advertisements
- print materials such as brochures or applications
- television and radio ads
- and even speech.
In other words, the FHA can cover messaging from a brand or people associated with the brand even across media that may not strictly be advertisements as typically defined. For example, expressing an illegal preference or limitation to one of your fellow agents, brokers, employees, prospective sellers, renters, or to any other person in connection with the sale or rental of your property is illegal under the FHA. Here are two examples of illegal advertising that you may not have realized were violations of the Fair Housing Act (examples provided by the Fair Housing Institute).
- A maintenance man tells a passer-by that “only real Americans” live in the apartment complex where he works.
- A rental office is decorated with many large pictures of the residents participating in the community’s facilities and amenities such as exercising in the weight room, swimming, and playing volleyball and tennis. However, all of the pictures are of white, young, “yuppies;” none of the pictures shows children, or persons of differing races or nationalities.
Best Practices for Fair Housing Compliant Marketing
When it comes to writing fair housing compliant copy for your apartment marketing materials, it’s important first and foremost to use inclusive language as often as possible. This includes the following:
- Use gender-neutral terms and pronouns as often as possible. (e.g. “partner” or “spouse” instead of “husband” or “wife;” “child” or “student” instead of “son or daughter;” “they/them” instead of “he or she/him or her;” etc.)
- Avoid mentioning specific religious holidays or practices
- Avoid mentioning specific national or regional origins
It’s also wise to eliminate the use of buzzwords like “Restricted,” “Exclusive,” or “Limited,” as these have been associated with discriminatory practices in the past. If tempted to use these sorts of buzzwords, consider similar words instead like “Luxurious,” “Deluxe,” “Quality,” or “Sophisticated.”
It’s also important to avoid the temptation to speak about who you see as the ideal resident of your community. For example, if you have a community with a playground, you might be tempted to say that your apartments are “perfect for families,” but this expresses an illegal discrimination or preference for one of the protected classes under the FHA. Instead of indicating who you think should live at your community, focus on the amenities, features, and local attractions your property offers. Always offer truthful information about the availability, price, amenities, and features of a housing unit and leave it up to your prospects to determine whether the community is right for them.
In addition, when writing copy for websites, social media posts, articles, and the like, consider how legible the copy will be to a person reading your content via a screen reader program rather than by sight alone. Use capitalization and punctuation in ways that make it easier for these screen reader programs to parse copy (e.g. capitalize each word in a hashtag as in #ScreenReader).
When it comes to design, representing diversity should be a top priority whether you’re launching new ads or designing a website. Use photos of diverse groups of people from all protected classes whenever possible. If you have to depict just one or two people in a given image, consider depicting a person or people from another protected class in the next image. In general, your goal is to provide an overall impression of diversity for a user that encounters your brand assets. Don’t forget that diversity doesn’t just include racial diversity, it also includes things like gender, disability, and religious diversity.
It’s also wise to incorporate the Equal Housing Opportunity logo in your ads and on your website. While the Fair Housing Act itself does not require the use of Equal Opportunity logo in any ad, using the logo does show your company’s commitment to fair housing compliance.
Similarly, we recommend incorporating the Americans with Disabilities Act Icon wherever relevant, such as on a floor plans or community amenities page. Several federal laws require that private and federally-assisted housing be accessible to persons with disabilities. While this icon is not required on marketing materials, it acts as further evidence of your company’s commitment to fair housing compliance and encourages people with disabilities to apply to live at your community if they see the icon on your website or other assets.
For more resources on creating accessible design across digital and print marketing, we recommend looking into dedicated resources like W3’s Web Accessibility Initiative, UX Design’s post on Accessible Design, and Smashing Magazine’s article on Designing for Accessibility and Inclusion.
ADA-Compliant Websites and Accessibility
While the Americans With Disabilities Act prohibits discrimination on the basis of disability, it doesn’t provide much in the way of accessibility guidelines to determine how accessible a website is to people with various disabilities. To put it generally, everyone, including persons with disabilities, should be able to enjoy the “full and equal” use of your website; they should be able to access content, navigate your website smoothly, engage with different elements, etc.
When it comes to more concrete guidelines, U.S. courts and the Department of Justice have continually referenced the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA success criteria as the standard to gauge whether websites are accessible. The WCAG 2.0 AA success criteria are comprised of 38 requirements and you can learn more at W3’s Web Content Accessibility Guidelines (WCAG) Overview. Although there is a lot here to sift through, WCAG 3.0 is scheduled for release in 2021 and is intended to be a much more inclusive set of guidelines that are easier to understand and implement.
Using an accessibility widget is a great way to cover many of the WCAG guidelines for your website. An accessibility widget is a plugin that helps users with disabilities access the site and may allow users to adjust factors like contrast and font size, use keyboard navigation or page readers, and stop animations on the site. No plugin guarantees 100% coverage of the WCAG guidelines, but nevertheless, they are a great addition to your website.
FHA’s Impact on Digital Advertising for Apartments
Thanks to guidance from the Fair Housing Act and similar legislation, the housing industry has emerged as one of the first to receive official legal guidelines for digital advertising tactics. While traditional marketing has operated under clearer legislation, the digital space has long been a legal frontier as legislators, courts, and thought leaders work to catch up.
In 2019, platforms like Facebook and Google, who represent the lion’s share of digital advertising space, began making changes to their advertising options. To summarize, the platforms have now eliminated or adjusted a number of targeting options for ads falling into the categories of housing and finance in order to bring their platforms into better accordance with FHA and similar legislation. These changes—such as the removal of zip code targeting, age targeting, and targeting based on certain interests—reduce the possibility of inequitable impact across the protected classes under the FHA. You can learn more about Facebook’s targeting changes and Google’s targeting changes in our other posts, linked here.
What We Expect To See Next For Digital Marketing
These targeting changes on Facebook and Google are likely to act as forward momentum for similar such changes in the future. We expect cookie privacy and other privacy concerns to be a large part of the discussion in the coming years. We also expect other platforms beyond Facebook and Google to begin seeing regulation (if they don’t initiate changes proactively themselves).