This is the sixth episode in our new video series covering Implicit Bias principles, and provides a sneak peek into our new DRE-approved continuing education (CE)  requirements that apply to real estate agents and brokers with licenses expiring on or after January 1, 2023.

This episode provides actionable guidance for advertising to a wide, diverse audience. The prior episode covers the economic drawbacks of implicit bias.

Implicit signaling

In advertising, a company needs to target audiences effectively and directly. For example, goods marketed toward women are stereotypically packaged in pastels, identifying them as engineered for a feminine audience before you can even say “For Her.”

While that might pass muster in retail, applying such a strategy in real estate may amount to implicit discrimination or worse – explicit discrimination.

For an example of implicit discrimination in advertising, consider an agent who directs Black homebuyers only to neighborhoods with a large Black population. While they may believe they are acting in their client’s best interest by guiding them to a community with a similar population, the impact is discriminatory and this activity is unlawful.

Of course, some neighborhoods are not a good fit for every homebuyer. But when selling and renting properties, it is risky to limit your marketing blitz to a single group — even when that group is protected under fair housing laws.

Relatedly, when you are going to use models or stock photography in any of your marketing materials, be mindful to use images of all types of people. Do not single out one group in particular, even when the group you choose to single out is a protected group. By relying on just one type of person in your marketing, whether premised on race, gender or other protected class, you are implicitly signaling the property is not a good fit for others who are not in this group.

Federal protections under the Federal Fair Housing Act (FFHA)

The printing or publishing of an advertisement for the sale or rental of residential property that indicates a wrongful discriminatory preference is a violation of the Federal Fair Housing Act (FFHA). [42 United States Code §3604(c)]

A property sold or leased for residential occupancy is referred to as a dwelling. The discriminatory preference rule applies to all brokers, developers and landlords in the business of selling or renting a dwelling. [42 USC §3603, 3604]

Real estate advertising guidelines are issued by the Department of Housing and Urban Development (HUD). The guidelines are the criteria by which HUD determines whether a broker has practiced or will practice wrongful discriminatory preferences in their advertising and availability of real estate services.

HUD guidelines also help the broker, developer, and landlord avoid signaling preferences or limitations for any group of persons when marketing real estate for sale or rent.

Wrongful discriminatory preferences in advertising

The selective use of words, phrases, symbols, visual aids and media in the advertising of real estate may indicate a wrongful discriminatory preference held by the advertiser. When published, the preference can lead to a claim of discriminatory housing practices by a member of the protected class.

Words in a broker’s real estate advertisement that indicate a particular race, color, sex, sexual orientation, handicap, familial status or national origin are considered violations of the FFHA.

To best protect themselves, a broker – as gatekeeper to real estate – refuses to use phrases indicating a wrongful preference, even when requested by a seller or landlord.

Preferences are often voiced in prejudicial colloquialisms and words such as restricted, exclusive, private, integrated or membership approval. Words or phrases indicating a preference in violation of the rights of persons from protected classes include:

  • white private home;
  • perfect for newlyweds;
  • Jewish (or Christian) home;
  • country club nearby;
  • Black home;
  • walking distance from the synagogue;
  • ideal bachelor pad;
  • spacious master bedroom;
  • Hispanic neighborhood; or
  • adult building.

Beyond just words

Words are not the only way to discriminate. Selectively using symbols, images, human models, visuals and other forms of media indicate preference too. Examples of symbols and other visual aids used in advertising include:

  • sexuality pride flags;
  • religious images such as a cross or Star of David;
  • gender symbols;
  • handicapped signs; and
  • flags representing nationalities.

As previously discussed, aiming an advertisement at a particular class may lead people outside the group to believe they are not welcome in the area. Also, it may make the seller and their agent look like they only want to do business with a few select groups, which is never the desired intent in good brokerage practice.

The phrases above directly target protected classes, so it is best to leave them out of your practice – period. This includes listings and marketing materials, as well as applications and deeds. While some may not sound aggressively prejudiced, even the seemingly harmless phrase “spacious master bedroom” is to be avoided due to the historical underpinning of the expression.

Regardless of what the advertiser meant, these problematic phrases can alienate clients and welcome a discrimination lawsuit.

Further, these phrases may not directly reference protected classes. Words like “exclusive,” “private” and “restricted” indicates the neighborhood has a barrier to entry, such as income, religion or ethnicity. Phrases like “membership approval” raise all sorts of loaded questions, like what makes someone qualified for a membership and how members are approved. It’s best to avoid these red herring words and focus on the property facts, of which there are many.

Protect against discrimination lawsuits

As a matter of best practices, real estate professionals – gatekeepers – need to avoid using discriminatory language or images in their practice, keeping in mind the ostensibly welcoming advertisement examples discussed here. Further, to create a favorable impression which induces the most people to contract for real estate services with the brokerage, real estate professionals need to avoid all language that is politically charged or can be construed of carrying an unintended loaded meaning.

No matter how well-intentioned the specifications may be, good intentions will not protect brokers and agents against fines and potential litigation.

Brokers may not direct potential buyers or renters to areas the broker thinks are suitable for them based on their protected status.

Prior to 2022, a loophole in the Real Estate Regulations allowed agents to decide which properties to show clients with disabilities, based on what the agent believed to be suitable or unsuitable properties due to the client’s disability. For example, a broker representing a client in a wheelchair may have skipped showing their client any properties with stairs, believing they were doing their client a favor.

However, agents cannot fully understand their clients’ needs or abilities, even despite their best intentions. Therefore, a 2022 update requires real estate professionals to provide all clients an opportunity to view, rent, sell or finance any property the client believes will suit their needs, closing the disability loophole. [DRE Reg. §2780(b)]

It is best to cast a wide net in real estate when advertising homes as using discriminatory ads may lower turnover rates – and in turn, reduce fees. Brokers are better off making listings sound inclusive, not like they’re trying to appeal to a niche.

Fair housing is not a niche, and neither is getting paid.

Editor’s note – firsttuesday was one of the first schools in California to obtain DRE-approval for the new implicit bias training and expanded Fair Housing course.

To enroll, visit the order page.