With more than 2.9 billion monthly active users on Facebook, it’s not surprising that it’s a popular place to promote real estate. As with all advertising, real estate licensees need to ensure that all Facebook paid advertising and non-paid posts comply with The Fair Housing Act.We’ll review what the Fair Housing Act says about advertising and how this relates to your Facebook promotions and ads. You’ll also find some useful tips to help you avoid a potential discrimination lawsuit.
What The Fair Housing Act Says
The Fair Housing Act (herein referred to as The Act) covers most housing. There are some limited exemptions in some circumstances for owner-occupied buildings with no more than four units, single-family houses rented or sold by the owner without a real estate agent, and housing operated by private clubs and religious organizations that only allow occupancy to their own members.
The Act prohibits the “making, printing and publishing of advertisements that indicate a preference, limitation or discrimination because of race, color, religion, sex (including gender identity and sexual orientation), disability, familial status, or national origin.
Prohibited Words and Symbols
Under The Act, real estate licensees should not use any words or phrases that could be construed as discriminatory in your advertising and posts. Promotions should be about the property itself and not about who should live there. The Act provides a list of prohibited words and phrases that are indicative of race, color, religion, sex, handicap, familial status or national origin. For example, advertising could not say that a buyer needs to be ‘physically fit’ to live in the property.
Words that suggest only a certain ‘type’ of person may live in a property are prohibited.
Real estate professionals should avoid using words such as:
- Restricted
- Exclusive
- Traditional
- Board approval required
For example, you cannot say that a property is “restricted to over 18s” or that it’s suitable for “traditional families”.
It’s not just discriminatory words that are prohibited — real estate licensees need to be aware of potentially discriminatory photographs, illustrations, symbols and forms as well. They are all covered by The Act.
Using Photographs in Facebook Ads and Posts
The Act also covers the “selective use of human models” in advertising and posts. The use of models with a particular characteristic, for example only women, or only Caucasian people, without catering to other segments of the population may also be construed as discrimination. Any advertising must indicate that the property is open to anyone regardless. Real estate licensees can help prevent advertising campaigns that contravene these rules by using imagery of the property rather than people.
Facebook Algorithms
In the past, there have been some concerns about Facebook algorithms and their potential for The Fair Housing Act discrimination. In 2019, Facebook’s parent company, Meta Platforms, was sued for allegedly violating The Fair Housing Act. That case was settled in 2022, and Meta Platforms has since unveiled a new ad-targeting algorithm they say is fully compliant. As part of the settlement agreement, the Department of Justice will approve future changes to targeting options before implementation.
Brokers Can Be Held Responsible For Their Licensees
Brokers should keep in mind that they can be held accountable for sharing the content of their licensees. The Fair Housing Act not only applies to people who make discriminatory statements but also to anyone who publishes them. It is very easy to share advertising and posts on Facebook. A mindless scroll and a quick share of a Facebook post at the end of a long day could see you in hot water facing a lawsuit if the content is considered discriminatory.
Similarly, real estate licensees who use third-party contractors to create your Facebook content and ads are still ultimately responsible for what is shared on yourFacebook page.
Tips to Keep Your Facebook Ads and Content Legal
To keep your Facebook ads and content legal and non-discriminatory, real estate licensees should:
- Ensure you and your team are all familiar with The Fair Housing Act. It needs to be part of the induction process and regular reminders and training should be scheduled.
- Have policies and templates in place to cover how social media ads should be created and provide guidance to your team about what is NOT acceptable.
- Avoid any discriminatory language or stereotypes
- Be inclusive in your language
- Ensure you have a review process in place for all advertising campaigns. This will help to catch any inadvertent contraventions of The Act.
- Focus advertising on the property and not the people that might live in it.
- Get legal advice if in doubt whether a campaign complies with The Act
Ensure You and Your Brokerage Are Protected
Business insurance is an essential part of any real estatelicensee’s risk management strategy. CRES is a real estate errors and omissions specialist for both individual licensees and real estate brokerage companies.
As part of one of the largest insurance brokers in the world, we have access to more E&O and Business Owner Policy options than just about anyone else.
Contact CRES at 800-880-2747 about E&O insurance or a Business Owner’s Policy that can be customized to suit the needs of your business.
