Posted on July 24, 2009 by Scott M. Badami

Who Gets Protection From Liability for On-Line Advertisements?

                        What happens if management posts an on line advertisement for housing with a website provider if the content of that advertisement possibly contains a discriminatory preference or a limitation based on a protected class? Two recent cases provide important guidance.

                        In Chicago Lawyers Comm. For Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008) the court issued a decision impacting how the Communications Decency Act (“CDA”) interacts with the Fair Housing Act (“FHA”). Specifically, can a website operator be held liable for a FHA violation because of allegedly discriminatory statements in an online advertisement for housing? In this case, the appellate panel concluded that the CDA protects website operators and was not subject to the FHA since it did not post the statements or cause them to be posted. 

 

                        On facts with a slight – but significant – difference, in Fair Housing Council of San Fernando Valley, Inc. v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (en banc), the court held that Roommates.com violated the FHA by contributing to the creation or development of discriminatory statements and advertisements on its web site. While the Ninth Circuit agreed with the Seventh Circuit that websites are protected from FHA liability based on advertising content provided by others, because Roommates.com required advertisers to fill in a questionnaire stating their preferences and by directing them to other advertisers whose preferences matched their own, the court held that Roommates.com was not entitled to immunity under the CDA and would be subject to FHA liability.

 

                        As is always the case in these circumstances, when you use any online advertisement for housing: follow the anti-discrimination provisions in the FHA so you will not need to have an appellate court review your ad.

 

Just A Thought.

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Posted on July 4, 2009 by Scott M. Badami

Think the Number of Housing Discrimination Complaints is Going Down? Think Again.

According to the U.S. Department of Housing and Urban Development’s (“HUD’s”) annual report, 10,552 fair housing discrimination complaints were filed in fiscal year 2008. That is an all time record. Some other notes from HUD’s report include:

  • Allegations based on disability remain the most common basis for a complaint – in fiscal 2008, 4,675 disability complaints (or 44 percent of the total) were filed. 
  • Allegations based on race were the second most frequent basis for a complaint – 3,669 race complaints (or 35 percent of the total) were filed.  
  • Interestingly, the approximate percentage of complaints filed under each of the seven characteristics protected under federal fair housing law has remained relatively stable during the past four fiscal years.
  • After disability and race, familial status (1,690 complaints or 16 percent of the total) and national origin (1,364 complaints or 13 percent of the total) were the most common bases of complaints. 
  • Retaliation, religion, and color were the least common bases of complaints filed with fair housing agencies in the past four fiscal years. In fiscal 2008, retaliation was cited as a basis for 575 complaints (or 5 percent of the total). Religion was alleged as a basis for 339 complaints (or 3 percent of the total). Color was cited as a basis for 262 complaints (or 2 percent of the total).
  • Also, the number of complaints based on “failure to make a reasonable accommodation” jumped 5 percent during the last four years. In fiscal 2008, “failure to make a reasonable accommodation” was alleged in 2,401 complaints, or 23 percent of the overall total—the third most common issue.

These figures continue to show us that management must remain vigilant. We must always train our employees to know and follow the law. We must appropriately document our resident and community files. I see no meaningful reduction in the number of fair housing complaints in 2009. Significantly, always remember that while management is alleged to have done something wrong when a complaint gets filed, it is up to us to prove our innocence in these cases. Doing so requires good education and documentation. One last point: while the number of retaliation cases is not statistically large, agencies and investigators always take retaliation cases seriously and we must clearly demonstrate that management did not retaliate against anyone because he or she filed a fair housing complaint.

 

Just A Thought.

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