Fighting Words : Effort to Avoid Housing Discrimination Has Changed the Way Realty Ads Are Written
Picture this: “Sunny bachelor apartment. Great for students, singles. Quiet neighborhood near biking and jogging trails. Walking distance to churches, synagogues, shopping.”
Now picture a horrendously expensive lawsuit. Because that’s what you could wind up facing if you wrote--or published--that real estate advertisement in California.
The Fair Housing Act, created by Congress in 1968 and amended in 1988, specifically prohibits housing discrimination on the basis of “race, color, religion, sex, handicap, familial status or national origin.” Any landlord who violates the law can be sued--as can the newspapers that publish the offensive ads. Lawsuits can be brought by an individual plaintiff or an agency such as a fair housing council. The law applies to newspapers that publish the ads as well as the advertisers who create them.
The fictitious ad above doesn’t quite hit all the law’s hot buttons, but a close read reveals that it could send an unfriendly message to those who:
--Are not male (“bachelor apartment”).
--May be married or have children (again the word bachelor, plus, specifying “students” or “singles” could discriminate against married people or families and “quiet neighborhood” has a further no-kids connotation).
--Are disabled (mentioning “jogging and biking trails” suggests that those with handicaps are unwelcome, as does use of the term walking distance ).
--May not be observant Christians or Jews (mentioning “churches” and “synagogues” might be interpreted as screening out members of other religions or those who do not attend services regularly).
If you think any of that sounds far-fetched, know this: Thousands of dollars in fines and legal fees have been paid over ads that were much less egregious examples of housing bias.
The U.S. Department of Housing and Urban Development recently issued a memo clarifying and relaxing some of the more stringent interpretations of the federal regulations. But these changes have no effect so far in California, which has its own, much stricter rules governing real estate ads.
Three years ago, after the words adults preferred appeared in the classified section of his Montebello-based newspaper chain, Ric Trent’s life turned upside-down.
He was sued by the San Gabriel Fair Housing Council and the resulting fines and legal fees forced him to file for Chapter 11 bankruptcy protection, ultimately closing the doors on the 40-year-old Northeast Community Newspapers chain.
While Trent acknowledged that letting the phrase slip through put him in violation of the law, he insists that the legal action was inappropriate and ultimately hurt his readers--90% of whom are minority. “We printed critical information in Spanish,” he said bitterly. “More critical than the nuances of the Fair Housing Law. We wrote about what was happening in the schools and how to become citizens.”
Trent is now publisher of Wave Community Newspapers, a 31-newspaper chain that takes up where Northeast left off. But he says he’s still paying off thousands of dollars in legal bills.
Trent said he has no problem with the law’s fairness provisions, but as a newspaper publisher, “What I object to is the absolutely anti-constitutional aspect of killing the messenger.”
According to fair housing advocates, there is nothing anti-constitutional about the law. In fact, just the opposite. “If a person doesn’t have the choice of where they’re going to live,” said Linda Nolan, assistant deputy director of the state Department of Fair Employment and Housing, “they’re denied a basic civil right. People need to believe they have those choices.”
Selecting advertising language carefully is one way of making sure that people feel they have choices, said Diana Bruno, executive director of the San Fernando Valley Fair Housing Council in Panorama City.
Certain terms that used to be common in real estate ads are now off-limits, she explained, because they can be “discouraging” to prospective buyers or renters who might interpret the ad as saying that they are not welcome in a given neighborhood. “A term like exclusive can sound like an income barrier,” Bruno said. “People should have the option to see for ourselves.”
According to Bruno and other fair housing authorities, one basic guideline for staying within the letter and spirit of the law is to advertise the property with no preconceived notion of who the tenant or buyer might be. “You just present the facts in terms of your property, its amenities, price and location,” she said.
That sounds simple enough. But even the law’s most ardent advocates admit that there is confusion about what’s OK and what is not.
“What’s going on is, everyone is panicking,” said Debbie Rodriguez, executive director of the Fair Housing Opportunities Center in Hollywood. Rodriguez, who has administered fair housing programs for the past 17 years and runs training sessions for classified ad departments, said fear of running afoul of the law has rendered some extreme judgments about permissible language.
“It’s gotten out of hand,” Bruno said. “saying ‘Active Adults’ is clearly a no-no. But to me it’s ridiculous not to say walk-in closet (for fear of offending the disabled).” Still, she acknowledged, some advertisers no longer allow the term.
And that’s where some of the bad rap comes in. Rumors of forbidden phrases abound. The most notorious is “master bedroom,” supposedly banned because of its slavery connotation. The term has been mentioned in some newspaper accounts as an example of the law being carried to extremes. But no fair housing authority interviewed for this story found a problem with the term or knew of any situations in which it had been challenged, and the recent HUD memo specifically states that the phrase does not violate race or sex discrimination rules.
Which is not to say that there aren’t plenty of other problems.
“It’s a sticky wicket,” said Jonell Webb, advertising director for the Porterville Recorder. “For years we’ve been encouraging realtors to describe houses more with phrases like ‘perfect for grandma . . . handy room for dad. . . .’ Now we have to tell them they can’t say that, and they get angry.”
Chico realtor Rolf Dornseif is a case in point. When German-born Dornseif ran up against the fair housing laws last year, he said he felt like he was in Nazi Germany.
Dornseif said he was merely trying to place the same ad he had run in the local paper for years. He called it “the best lure in my real estate tackle box.” By advertising a home for sale in the California state university town as a “parent investor,” Dornseif regularly sold houses to parents of college students looking for a place to live. Under the arrangement, the parents acquired a good real estate investment while securing housing for their college-bound kids.
“After 15 years, suddenly I was told I couldn’t use the word parent ,” he fumed. But Dornseif said what bothered him the most was that “parent” wasn’t even on a list of words banished by the Chico Enterprise Record advertising department.
“What really scared me about this thing was that the word just smelled like an off-limit word,” he said. “It was like they were so scared of HUD and these regulations that they not only didn’t let you say the words from the guidelines, but they also wouldn’t let you say any other words. It smelled like the Third Reich as far as I was concerned.”
It is not usually in a newspaper’s best interest to refuse an ad, said Dottie Hashizumi, coordinator of customer relations for advertising at The Times. “So I always say, ‘Let’s try to work together.’ ” Hashizumi said she’s able to do that by using common sense and taking words in context. “To call something a prestigious home is OK,” she said. “It’s all in the eye of the beholder. You can have one in Downey or in Palos Verdes.”
Still, Hashizumi acknowledged, nuances can be critical. “We’re now advising against use of the word couple because it can be construed as man and woman (in violation of the state’s fair housing regulations, which include sexual orientation as a protected class). “We use the word pair instead.”
Such subtleties have many real estate advertisers and newspapers clamoring for a compass to assist in navigating these tricky waters.
Many advertisers in this state steer by a manual from the California Newspaper Publishers Assn. The CNPA does not offer a list of words to avoid. Instead, said General Counsel Tom Newton, “We take a look at an ad and attempt to determine whether words used would indicate any preference or would discriminate against a protected class.”
Newton said he hopes that California’s regulations may soon mesh with the newly clarified and less restrictive federal rules. But he also expressed impatience with the state Department of Fair Employment and Housing for not having met with the CNPA yet to discuss the Jan. 9 HUD memo and its potential impact on California.
“I wish (the department) would get off its butt and clarify what the rules are,” he said. The HUD memo now explicitly permits words and phrases that had previously been avoided by cautious classified advertising departments at many newspapers (e.g., “bachelor apartment,” “jogging trails,” “quiet streets”), Newton added. “The federal bureaucracy has taken the time to notice the problems and fix them, but in California we still have uncertainty, inconsistency, unfairness and absurdity.”
Donna Campbell, deputy director and legislative counsel for the state Fair Housing Department, said a meeting between the agency and the newspaper publishers is in the works, and added, “The department enforces the laws that are on the books. And until California law itself is amended or changed to create whatever exceptions he (Newton) would like, we will enforce the law.”
In the meantime, classified ad department supervisors such as Tony Fenton at the Chico Enterprise and Record have made no changes in their list of words to avoid. But even though he closely follows the manual created by the CNPA, Fenton is frequently uneasy when questions come up. “I’m afraid to say yes or no myself,” he said, “so we just call (the Department of Fair Employment and Housing) and ask.”
And yet, as Porterville developer Ben Ennis discovered, even that doesn’t always work.
His company’s slogan, “Our family building for your family,” was declared out of bounds last fall by the state Fair Housing Department. A letter from the department informed him that “The verbage (sic) implies a preference which violates the aforesaid law . . . (and) has a ‘chilling effect’ on single persons or unmarried couples, who might not consider themselves a ‘family.’ ”
Some months later, Fair Housing Deputy Director Linda Nolan said that although the employee who made the ruling was “probably just being prudent,” she would have allowed the slogan. The employee who nixed it is no longer with the department.
Such confusion occurs less frequently in the state of Oregon, thanks to the Oregon Newspaper Publisher’s Assn., which bit the bullet and compiled a list of verboten verbiage.
Trailblazers on this thorny path, the ONPA was thrust into its pioneering role in 1991 when more than a dozen of its member papers were threatened with hundreds of thousands of dollars in fines for alleged violations of the Fair Housing Act. ONPA’s list and training manual were created as part of its settlement with the Fair Housing Council of Oregon.
ONPA Executive Director Leonard Lanfranco said he’s not crazy about having a list, but believes it does help to eliminate bias in newspaper ads. And he is distressed by the fact that the U.S. Department of Housing and Urban Development (HUD) refuses to sanction ONPA’s--or anyone’s--list.
“It’s like if you move to a new town and you’re told they have certain motor vehicle laws--but they won’t post any signs. And they’ll arrest you if you violate them. That’s what HUD has done to all of us,” Lanfranco said.
But it’s not that simple, according to Thomas Honore, director of the Fair Housing Division of HUD’s Los Angeles office. “We demean the law by saying it’s just about a list of words,” he said. “I don’t believe in having lists because no list will by its nature be all-inclusive and you have to look at the context.
“People are looking for a simple answer to a much more complex issue. It’s a long and sad tradition of people assuming that some people are less worthy or less attractive and deserve less of a welcome.”
Honore cited a HUD study of rental housing that found Latinos are discriminated against 52% of the time and blacks 56% of the time. “That,” he said, “is the underlying reality. Talking about lists gets away from that central fact.”
Still, there’s no denying that the law has swept some words and phrases into the dustbin of real estate advertising history: Adult, bachelor and quiet tenants are clear casualties, while terms such as private, handyman’s dream and nanny’s room will send ad takers scurrying for clarification.
Rose Mayes, executive director of the Fair Housing Council of Riverside County, said her method of recognizing violations of the law is based on a kind of gut reaction:
“It’s something that pains you when you read it because you already know those words. If I say ‘active adults,’ I’m saying I don’t want you to come if you’re crippled, blind or in a wheelchair. It’s a painful thing to see something like that.”
Mayes says she’s seen plenty of discriminatory ads--and not accidental ones either. “We see some stuff that is a slap in the face to us. And you call and you write and they just laugh. Some people pull ads and revise them. Other people go on their way as if who cares because they think $20,000 is a slap on the wrist!”
Chuck Freeman felt burned, not slapped on the wrist, by his $20,000 fine. His paper was sued by Mayes’ fair housing organization because the phrase adults only appeared in his Banning-based paper, the Record-Gazette.
“I was just flabbergasted that my newspaper and myself were being sued,” Freeman said. “It said in the suit that we’d been warned several times. This is a falsehood.” He said that a $20,000 fine is significant for a paper of the Record-Gazette’s size (circulation 3,500). “Now we’re being extremely cautious,” he said. “Whenever a new client calls to put in anything pertaining to housing, we read a script to them from the Fair Housing Act.”
Freeman said he believes in what the Fair Housing Law is trying to accomplish, but says in his case, “it was totally unfair.”
But Kay Divine of the Los Angeles Westside Fair Housing Council is not sympathetic. “The thing that’s offensive is not that the newspapers are having to pay; they wouldn’t if they had educated themselves. It’s 1995,” she said. “They shouldn’t be in business if they don’t find out about the law.”
Newton believes that’s too harsh. “We’re knocking good newspapers out of circulation,” he said. “The penalty for running one bad ad--for which you create about $50 revenue--is incredible.”
To help protect its members from run-ins with the Fair Housing Act, the CNPA now conducts training programs for classified ad takers, department managers and realtors.
Educating those on the front lines has helped, Newton said. “The tussle is now between our interest in self-preservation and realtors’ interest in being able to advertise their merchandise creatively,” he said.
But that’s a cop-out, according to Gideon Kanner, professor emeritus at the Loyola University Law School. “Hypocrites!” is one of the milder terms he bestows on the newspaper industry. Kanner believes that left-wing bias and fear of being labeled “politically incorrect” have caused newspaper publishers to “roll over” on this issue.
“You have all these folks who normally march to the barricades to fight for the First Amendment acting like rabbits,” Kanner said.
“What would have happened if some government entity came to newspapers and told people they couldn’t print words in some other context?” he demanded. "(They would) be in court demanding their free speech!”
Kanner said the law has resulted in a logical and legal inconsistency. “It’s OK for Nazis to go marching in Skokie, calling for ethnic mass murder. That’s just dandy, First Amendment-wise. But if you put an ad in the newspaper advertising a private home suitable for an executive couple, that’s a criminal offense.”
But Linda Nolan of the state Department of Fair Employment and Housing maintains that confusion and difficulties notwithstanding, the law is a good thing.
“All of this is directed toward providing a society where people feel more included, she said. “I might be a Pollyanna, but I tend to believe that there are tenants who fall into all those (protected) categories and they come in all colors and they come with kids.”
Lagatree is a Long Beach free-lance writer.
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Taboo, Troublesome and Safe Words
This list, compiled by the Oregon Newspaper Publishers Assn., is aimed at helping owners, landlords, realtors and others to avoid describing prospective buyers or tenants, while proscribing the unacceptable behaviors of potential buyers or renters. For example, a phrase such as “no drinking” is OK, while “no drinkers” is unacceptable.
board approval required
employed, must be
handicapped, not for
landlord (description of)
membership approval required
mentally handicapped, no
mentally ill, no
must comply with park rules
no play area
seasonal worker, no
tenant (description of)
country club, near
man (men) only
number of persons
Section 8, no
sex or gender
single woman, man
walking distance of, within
woman (women) only
credit check required
drug users, no
Equal Housing Opportunity
family, great for
golf course, near
number of bedrooms
number of sleeping areas
public transport, near