In late March, the Department of Housing and Urban Development (HUD) targeted Facebook by filing a lawsuit for a surprising reason — housing discrimination.

While Facebook isn’t directly involved in the buying or selling of homes, it does have a heavy hand in advertising homes for sale.

At the heart of the contentious suit is data. Facebook — and by extension, the entities that advertise on it — has access to consumer data, including its users’ ethnic backgrounds, genders and political affiliations. Thus, many of the advertisements on its platform are targeted toward specific groups of users based on data collected from these users’ digital footprints.

HUD alleges this practice is a violation of the Federal Fair Housing Act (FFHA).

The FFHA explicitly prohibits advertisers for housing, or the platforms on which they advertise, from indicating any preference or limitation on the basis of:

  • race;
  • color;
  • religion;
  • sex;
  • disability status;
  • familial status; or
  • national origin. [42 United States Code §3604(c)]

What does the new HUD have to say about it?

While Facebook has had trouble with privacy concerns over the last couple of years, no government entity has yet to go after the company over its fundamentally data-driven business model.

The suit also comes as surprise for another reason — since Ben Carson took over the department in 2017, HUD has scaled back its interest in defending the public when it comes to housing discrimination.

In the first year of Carson’s tenure, HUD, among other acts, delayed Section 8 housing expansion and removed or obstructed various anti-discrimination resources. The department hasn’t since offered any indication that it intends to return to its pre-Carson focus on fair housing.

This context makes it all the more unexpected that HUD is choosing to take a stand against Facebook over allegedly discriminatory practices.

Given the tenor of the department’s recent actions, it’s difficult to believe HUD is signaling its recommitment to tackling housing discrimination in all its forms. However, if filtering out potential consumers based on their digital profiles is in fact unlawful, the suit may well have broader impacts on the way digital media platforms control and account for their advertisers.

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A friendly reminder for real estate agents

Even with the scope of this suit in mind, it’s important to remember the rules governing Facebook’s conduct also apply to more traditional advertising models.

Since California boasts further defenses such as the Unruh Civil Rights Act — which in addition to those protections afforded by the FFHA also protects against discrimination on the basis of age, ancestry, genetic information, marital status, medical condition, gender identity, expression or sexual orientation — it behooves all members of the real estate industry to consider how advertisements are presented.

Any broker, agent or landlord marketing real estate for sale or rent needs to word their advertisements carefully so as to sidestep the indication of discriminatory preference. Avoid phrases like adult building or Hispanic neighborhood, as well as more subtle discriminatory language like exclusive, as restricted, private, integrated or membership approval.

The best rule to bear in mind, whether in regard to lending or advertisement: different treatment is discriminatory treatment.