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The Department of Housing and Urban Development is going after Facebook for running ads that violate the Fair Housing Act. Facebook and the government have already worked out agreements for ads that might illegally discriminate against people in the hiring process. Don’t count on any fines or other assessments against Facebook. Facebook has an army of lawyers who can tie up a court case for years costing the federal government millions of dollar in legal fees. Chances are HUD and Facebook will work out an agreement. Landlords and small business owners, on the other hand, probably have neither the option of avoiding a fine for perceived illegal discrimination nor the legal teams to protect them.

HUD Secretary Ben Carson pointed out, “Using a computer to limit a person’s housing choices can be just as discriminatory as slamming a door in someone’s face.” Where you run an ad for a rental or employee is every bit as important as what the ad says. A March 28 article in the Washington Post explained, “HUD claimed that Facebook mines users’ extensive personal data and uses characteristics protected by law — race, color, national origin, religion, familial status, sex and disability — to determine who can view housing ads, even when it’s not the advertiser’s intent.” Facebook provides broad categories for targeting ads such as zip code, personal interest and demographics, including ethnic categories. Advertisers can select targets or just let Facebook use its algorithms to do it for them based on the advertisers personal data, such as his or her contacts and news choices. Many advertisers are unaware that Facebook does any targeting; they just run their ads and hope for acceptable applicants.

In spite of the fact that this targeting may have been without the knowledge or desire of the advertiser, the federal government appears unconvinced that landlords who advertised were innocent. The government asked Facebook to provide it access to Facebook’s “user base” so it could look around and maybe ferret out landlords who asked that their ads go only to select, albeit discriminatory, groups.

To their credit, Facebook declined to provide any user data, but their reason is less than reassuring. Joe Osborne, a Facebook spokesman, said “While we were eager to find a solution, HUD insisted on access to sensitive information—like user data—without adequate safeguards.” We can only speculate what those “adequate safeguards” might be, but Facebook appears willing to hand over user data if it is satisfied that “adequate safeguards” are in place.

That brings up the question of what should landlords and business owners do? That can be a difficult decision. Go to Facebook’s ad manager and look at the available selection criteria. One option, detailed targeting, offers numerous choices under demographics, interests, and behaviors. One is “multicultural affinity,” where an advertiser can select by race, Asian, African American, and three categories of Hispanic. Another allows a selection by politics, liberal, neutral, or conservative. Think about how someone could ensure that only conservatives could see an ad and think about how many African Americans and Hispanics are conservative. Now imagine a HUD representative seeing that selection when investigating an advertiser. The ad may be neutral, but it embodies something called disparate impact. The National Fair Housing Alliance explains the concept:

Disparate Impact is a legal doctrine under the Fair Housing Act which states that a policy may be considered discriminatory if it has a disproportionate “adverse impact” against any group based on race, national origin, color, religion, sex, familial status, or disability when there is no legitimate, non-discriminatory business need for the policy. In a disparate impact case, a person can challenge practices that have a “disproportionately adverse effect” on those protected by the Fair Housing Act and are “otherwise unjustified by a legitimate rationale.”

The decision as to whether a policy is necessary to “serve a . . . legitimate interest of the housing provider” per an April 4, 2016 HUD “General Counsel Guidance,” is left mostly up to HUD. The only thing HUD has to prove, is that a “less discriminatory alternative” is possible. The advertiser wanted the ad to go to everyone and anyone, but somehow it got “targeted” so that far fewer, and a select fewer, ever got to see the ad.

With all that in mind, what to do? One option is not to run ads on Facebook at all. And that may be the safest way. If Facebook decides which demographics your ad will target, you may appear to be illegally discriminating. Numerous other online advertising option are available, such as Craigslist and rental housing and employment marketing websites.

Just as important is the wording of the ad, ensuring that it in no way seems to exclude any protected class. But that is an entirely different and complex subject that we haven’t room to discuss here. Cedrsolutions.com offers advice for writing a legal job ad. In my book, Get It Rented, available on Amazon, I provide complete instructions for writing a legal and effective rental ad.

Facebook doesn’t have to worry about paying huge fines for illegal discrimination because they have the legal resources to fight it. But owners of rental and businesses are in no position to take on government regulators to defend against a perceived violation of the fair housing or fair hiring laws. It is best to avoid any advertising medium where it could be construed as impacting a protected class—race, color, national origin, religion, family status, gender and disability.

By Robert L. Cain

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