By Mark B. Zinman, Williams, Zinman & Parham P.C.
Facebook is a multi-billion-dollar platform that allows people throughout the world to connect with their friends and their family. It seems like everyone has an opinion about Facebook, whether it is a useful tool for communicating, a dying social media website or a place filled with stories about people's kids. Usually Facebook potentially violating fair housing laws is not the first thing that comes to people’s mind.
Managers generally think about fair housing in terms of how they treat their applicants and residents. Managers are quick to tell stories about the time they had to allow a goat as an assistive animal to help the resident deal with anxiety. Given the complexity of how fair housing laws are applied on property, managers often forget that fair housing laws apply to advertising done in the real estate market. This can affect not only what the advertisements look like, but also what models they use, what language is included and to whom the advertisements are sent. Just like the prohibition on steering, advertisements should not target or avoid a specific protected class.
This rule becomes more complex when applied to online ads. There is a federal law called the Federal Communications Decency Act ("CDA") which provides that websites will not be liable for discriminatory content, where the site has no control over what is posted. In a case that went to the Supreme Court, it was found that Craigslist was not liable for discriminatory postings because the website merely provided a blank space for people to write in what they wanted. The Court found that Craigslist didn't control what was written nor did it target specific groups. The author that made a discriminatory post could still be liable for violating fair housing laws, but Craigslist was not liable.
A new lawsuit filed against Facebook in March, comes from a different angle and has good arguments as to why Facebook is different from Craigslist. While Facebook also only provides a blank slate for a person to write what they want, Facebook is different in that it is actually an advertising platform. Therefore, once the user types in the description it wants, it can then use Facebook tools to target which users see the advertisement. It can target men compared to women, for example. This means that an advertiser on Facebook could ensure that certain groups of people see more of its ads than members of another protected classes. This is a form of advertising discrimination that the FHA is intending to protect against.
Facebook has already publicly announced that it denies any discrimination and that it will defend itself in court. We will keep readers advised of developments in this case.
Click for the digital version
SUPPORT OUR SPONSORS