GUIDANCE REGARDING ADVERTISEMENTS
UNDER 804(C) OF THE FEDERAL FAIR HOUSING ACT

MEMORANDUM FOR:
FHEO Office Directors, Enforcement Directors,
Staff, Office of Investigations,
Field Assistant General Counsel

FROM:
Roberta Achtenberg, Assistant Secretary for
Fair Housing and Equal Opportunity

SUBJECT:
Guidance Regarding Advertisements Under
804(c) of the Fair Housing Act

January 9,1995

Published by Icann
 The advertising division of Idaho Newspaper Assn.
6560 Emerald, # 124, Boise, ID 83704



Purpose
  The purpose of this booklet is to provide guidance on the procedures for the
acceptance and investigation of allegations of discrimination under Section
804(c) of the Fair Housing Act (the Act) involving the publication of real
estate advertisements. (1)

  Recently, the number of inquiries involving whether or not potential
violations of the Act occur through use of certain words or phrases has
increased, and these issues cannot, in some situations, be answered by
referring to decided cases alone. In some circumstances, the Advertising
Guidelines, published at 24 C.F.R. Part 109, have been interpreted (usually
by persons outside of HUD) to extend the liability for advertisements to
circumstances which are unreasonable.

  This guidance is meant to advise you of the Department's position on several
of these issues.

Complaints Procedure
  Previous guidance already requires that Intake staff review a potential
complaint, gather preliminary information to ascertain whether the complaint
states a claim under the Act, and consult with counsel on any legally
questionable matters before the complaint is filed. Likewise, jurisdictional
issues such as standing and timeliness should also be established prior to
filing.

  If the Advertising Guidelines, this memorandum, or a judicial decision
clearly indicate that the language used in the advertisement is a potential
violation of Section 804(c) and the criteria for establishing jurisdiction
are met, the complaint should be filed and processed.
  Any complaint concerning an advertisement which requires an assessment of
whether the usage of particular words or phrases in context is
discriminatory, requires the approval of Headquarters FHEO before a complaint
is filed. 
 If the advertisement appears to be discriminatory, but the Advertising
Guidelines, this memorandum, or a judicial decision do not explicitly address
the language in question, supervisory staff must also obtain approval of
Headquarters FHEO before the complaint is filed. Potential complaints
regarding advertisements which do not meet the above descriptions should not
be filed.

 Where there is a question about whether a particular real estate advertising
complaint should be filed, relevant information regarding the factual and/or
legal issues involved in the complaint should be gathered, and counsel should
be consulted prior to contacting the potential respondent publisher.
  The matter should then be referred to the Office of Investigations for
review. Such referrals may take the form of a short memo, reciting the
applicable advertisement language, and any factual or legal analysis which is
appropriate.

Publisher Responsibility
 Section 804(c) of the Act prohibits the making, printing and publishing of
advertisements which state a preference, limitation or discrimination on the
basis of race, color, religion, sex, handicap, familial status, or national
origin. 
 The prohibition applies to publishers, such as newspapers and directories,
as well as to persons and entities who place real estate advertisements.
  It also applies to advertisements where the underlying property may be
exempt from the provisions of the Act, but where the advertisement itself
violates the Act. (See Sec. 42 U.S.C. 3603 (b).

 Publishers and advertisers are responsible under the Act for making,
printing, or publishing an advertisement that violates the Act on its face.
Thus, they should not publish or cause to be published an advertisement that
on its face expresses a preference, limitation or discrimination on the basis
of race, color, religion, sex, handicap, familial status, or national origin.
  To the extent that either the Advertising Guidelines or the case law do not
state that particular terms or phrases (or closely comparable terms) may
violate the act, a publisher is not liable under the Act for advertisements
which, in the context of the usage in a particular advertisement, might
indicate a preference, limitation or discrimination, but where such a
preference is not readily apparent to an ordinary reader.
  Therefore, complaints will not be accepted against publishers concerning
advertisements where the language might or might not be viewed as being used
in a discriminatory context.

 For example, Intake staff should not accept a complaint against a newspaper
for running an advertisement which includes the phrase "female roommate
wanted" because the advertisement does not indicate whether the requirement
for the shared living exception have been met. 
 Publishers can rely on the representations of the individual placing the ad
that shared living arrangements apply to the property in question.  Persons
placing such advertisements, however, are responsible for satisfying the
conditions for the exemption.  Thus, an ad for a female roommate could result
in liability for the person placing the ad if the housing being advertised is
actually a separate dwelling unit without shared living spaces. See 24 CFR
109.20.

 Similarly, Intake staff should not file a familial status complaint against
a publisher of an advertisement if the advertisement indicates on its face
that it is housing for older persons. While an owner-respondent may be held
responsible for running an advertisement indicating an exclusion of families
with children if his or her property does not meet the "housing for older
persons" exemption, a publisher is entitled to rely on the owner's assurance
that the property is exempt.

Specific Issues Guidance
 The following is policy guidance on certain advertising issues which have
arisen recently. We are currently reviewing past guidance from this office
and from the Office of General Counsel and will update our guidance as
appropriate.

1. Race, color, national origin. 
 Real estate advertisements should state no discriminatory preference or
limitation on account of race, color, or national origin. Use of words
describing the housing, the current or potential residents, or the neighbors
or neighborhood in racial or ethnic terms (i.e. white family home, no Irish)
will create liability under this section.

 However, advertisements which are facially neutral will not create
liability. Thus, complaints over use of phrases such as master bedroom, rare
find, or desirable neighborhood should not he filed

2. Religion. 
 Advertisements should not contain an explicit preference, limitation or
discrimination on account of religion (i.e. no Jews, Christian home).
Advertisements which use the legal name of an entity which contains a
religious reference (for example, Roselawn Catholic Home), or those which
contain a religious symbol, (such as a cross), standing alone, may indicate a
religious preference. However, if such an advertisement includes a disclaimer
(such as the statement 'This Home does not discriminate on the basis of race,
color, religion, national origin, sex handicap or familial status") it will
not violate the Act. 
 Advertisements containing descriptions of properties (apartment complex with
chapel), or services (kosher meals available) do not on their face state a
preference for persons likely to make use of those facilities, and are not
violations of the act.

 The use of secularized terms or symbols relating to religious holidays such
as Santa Claus, Easter Bunny, or St Valentine's Day images, or phrases such
as "Merry Christmas", "Happy Easter", or the like does not constitute a
violation of the Act.


3. Sex. 
 Advertisements for single family dwellings or separate units in a
multifamily dwelling should contain no explicit preference, limitation or
discrimination based on sex. Use of the term "master bedroom" does not
constitute a violation of either the sex discrimination provisions or the
race discrimination provisions. Terms such as "mother-in-law suite" and
"bachelor apartment" are commonly used as physical descriptions of housing
units and do not violate the Act.

4. Handicap. 
 Real estate advertisements should not contain explicit exclusions,
limitations, or other indications of discrimination based on handicap (i.e.
no wheelchairs). 
 Advertisements containing descriptions of properties (great view,
fourth-floor walk-up, walk-in closets), services or facilities  (jogging
trails), or neighborhoods (walk to bus-stop) do not violate the Act.
  Advertisements describing the conduct required of residents ("nonsmoking",
"sober") do not violate the Act. 
 Advertisements containing description of accessibility features are lawful
(wheelchair ramp).

5. Familial status. 
 Advertisements may not state an explicit preference, limitation or
discrimination based on familial