APARTMENT ADVOCATE
NATIONAL APARTMENT ASSOCIATION /
NATIONAL MULTIFAMILY HOUSING COUNCIL
Apartment Companies Targeted in
Facebook Advertising Cases
O
n September 18, Housing Rights
Initiative (HRI) and a class of potential
renters filed a lawsuit against seven
national or regional property management
firms, alleging age discrimination in advertising
in violation of local fair housing laws in the
Washington, D.C. metro area. This case is
the first fair housing complaint against rental
housing owners and operators, challenging their
advertising practices on Facebook. The plaintiffs
are seeking the following damages from the
defendants:
• A commitment to implement non-
discrimination policies throughout all of their
digital advertising;
• Educating and training their staff on
these policies;
• Monitoring their own compliance; and
• Compensating older residents who were
denied information about renting apartments.
In light of these recent developments, NAA
reminds its members to review their company
advertising or marketing plans for all digital
platforms. Facebook’s advertising platform allows
businesses to choose their target audiences by
selecting preferences from pre-populated lists
of user interests and demographics. This feature
may prevent paid advertisements from reaching
audiences outside of those parameters.
Prior to this case, Facebook was the primary
42 | TRENDS JANUARY 2020
target of scrutiny. In March, Facebook agreed
to make sweeping changes to its platform after
being accused of enabling discrimination in
housing, employment and lending advertising,
as part of an agreement to settle a civil rights
claim brought by the National Fair Housing
Alliance, Communications Workers of America,
several regional fair housing organizations and
individual consumers and job seekers. However,
these changes to Facebook’s platform only
address compliance concerns with federal laws.
While HRI’s allegations are based on age
protections in state or local fair housing laws (age
is not a protected class under the Fair Housing
Act (FHA)), previous claims against Facebook
itself focused on alleged discrimination under
the FHA. Of concern, Facebook’s pre-populated
lists allowed advertisers to exclude audiences
from their target list on the basis of interest
categories that are proxies for federally protected
classes (race, color, religion, national origin,
sex, familial status and disability), such as:
“Interest in Disabled Parking Permit,” interests
in “Telemundo,” “English as a second language,”
“parents with teenagers (13-18),” “soccer moms,”
or “moms of preschool kids.”
Other challenges included potential
disparate-impact liability in the use of zip codes
to target advertising campaigns. A rental housing
provider can be sued under disparate impact
theory if the owner or operator implements a
policy that is neutral on its face but nonetheless
has an unintended, discriminatory effect on
members of a protected class under the FHA.
The use of user interests, demographics
and zip codes may have intended or unintended
consequences on almost all of the federally
protected classes under the FHA.
Despite the settlement, the U.S. Department
of Housing and Urban Development (HUD)
is moving forward with an investigation and
formal charges against Facebook. HUD has
alleged that Facebook violated the Fair Housing
Act by encouraging, enabling, and causing
housing discrimination through the company’s
advertising platform. The agency further
alleges unresolved fair housing issues regarding
Facebook’s advertising practices, seeking to
obtain appropriate relief for what they argue is
ongoing harm. HUD is also investigating other
tech giants, such as Twitter and Google, based on
similar allegations.
At this time, NAA is working on guidance
to help prepare members for fair housing
enforcement and testing in this area. For
questions, please contact Nicole Upano, Director
of Public Policy or Scot Haislip, Vice President,
Legal Affairs and Counsel on the NAA staff.
www.aamdhq.org