U.S. Department of Housing and Urban Development
Washington, D.C. 20410-0500
Office of General Counsel Director/Legal Affairs
Newspaper Association of America
11600 Sunrise Valley Drive
Reston, VA 22091-1412
Re: Request for HUD's Opinion Concerning Certain Housing Advertisements
Dear Ms. Milam:
This letter responds to your letters to me of July 7, 1995 and November 21, 1994, and to a January 12, 1994 letter to Harry L. Carey of my staff, concerning the legality, under the Fair Housing Act ("Act"), of publishing advertisements placed by homeseekers in which the homeseekers describe themselves according to their religion, sex, familial status, or marital status. Permit me to apologize at the outset for the unusual length of time it has taken to respond to your question. The inquiry precipitated extensive legal research and a thorough policy consideration.
Although your January 12, 1994 letter specifically addressed only homeseeker advertisements identifying the advertiser's religion, sex, or marital status, [Marital status is not a protected classification under the Act, although it is a protected class under the fair housing laws of some state and local jurisdictions.] and not other protected classifications under the Act (i.e., race, color, national origin, familial status, and handicap), your follow-up letter of July 7, 1995 made reference to "religion, sex, familial status, etc." This response therefore treats your inquiry as pertaining to all of the bases covered by the Act.
The Department has determined, as a result of the review that your inquiry generated, that the placement, and publication, of advertisements in which homeseekers identify themselves with reference to one or more of their protected class characteristics do not constitute violations of the Act, and the Department will not, henceforth, accept complaints against homeseekers placing such advertisements, or the newspapers which publish them, on the ground that such advertisements violate the Act.
That the Department does not believe that such advertisements violate the Act should not, however, be equated with the conclusion that they may not be potentially inimical to fair housing. The publication of such advertisements, particularly those describing the homeseekers' race, ethnicity, or religion, could negatively affect the availability of housing on a nondiscriminatory basis, both by making it easier for those housing providers who are inclined to discriminate to identify and select potential tenants according to their protected class characteristics, and also by discouraging minorities from seeking housing in areas where such advertisements appear. Thus, as a matter of editorial discretion, newspapers, in order to further the objective of fair housing by eliminating such potentialities, may want to restrict the placement of those homeseeker advertisements that seem most likely to produce such results.
I hope you find this response helpful.
Nelson A. Diaz
cc: Elizabeth K. Julian
Sarah Pratt of The Department of Housing and Urban Development sent a memo to HUD regional directors concerning a new HUD policy in the area of self-identity advertisements. The memo was dated July 25, 1996. As you can see in the letter above, the decision actually came from the Office of the General Counsel, not Elizabeth Julian. Please find listed below the wording from the memo. As with HUD's recent Buyer/Agent Letter, this represents what some might view as a shift in prior position.
Betsy Julian has recently decided that the placement and publication of advertisements in which homeseekers self-identify their race, sex, or other category covered by the Act do not violate the Act and complaints against homeseekers placing such ads, or against newspapers publishing such ads, will not be accepted.
That is, placing or running an ad that says "white christian gentleman looking for apartment" does not violate the Act.
We will work on guidance which addresses this and other related issues; meanwhile I wanted you to know about this decision promptly. (Note that the policy decision was communicated to the Director of the Newspaper Association