Preliminary Report: Discriminatory Advertising in the Rental or Sale of Residential Property
Iowa Civil Rights Commission
Jaimie Mancham-Case and Jordan Roling[1]
I. Introduction
The Iowa Civil Rights Commission (the Commission) is a state administrative agency located in Des Moines, Iowa. Its mission is “enforcing civil rights laws through compliance, mediation, advocacy, and education.[2]” The Commission is charged with enforcing Iowa’s anti-discrimination law, the “Iowa Civil Rights Act of 1965”and its subsequent amendments. The Commission strives to eliminate discrimination by:
(1) investigating and resolving individual complaints alleging unlawful discrimination;
(2) conducting a multi-faceted public education program by offering a wide variety of educational resources on anti-discrimination law and the value of diversity; and
(3) providing consultation and direction for communities wanting to identify and resolve diversity and discrimination issues locally.
In addition to its investigative and general educational functions, the Commission is statutorily authorized to investigate and study the existence, character, causes and extent of discrimination in various areas, including housing,[3] as well as to issue publications and reports of investigations and research which will help prevent or eliminate discrimination in housing.[4] The Commissionis currently conducting a review of 2000 individual residential “for rent” and “for sale” housing ads as part of a Fair Housing Initiatives Grant received from the U.S. Department of Housing and Urban Development (HUD).[5] The Commission is conducting this review and issuing its findings for several reasons. First, with the rapid growth of the internet as an advertising tool, specifically sites such as Craigslist.com[6] and Forsalebyowner.com, the potential for violations seems greater than it has been in the past. Individuals inexperienced in selling or renting residential housing may not be fully aware of the requirements placed upon them by state and federal fair housing laws. The opportunityfor these individuals to place advertisements with little to no oversight leaves the door open for possible violations of federal and state law, as well as mistakes. Second, it is crucial that housing providers and advertisers are cognizant of what constitutes discriminatory advertising, thereby helping to ensure to the greatest extent possible full compliance with the law. Finally, the Commission will utilize the study to measure the current level of compliance, giving the Commission the ability to gauge improvements in future studies.
The Commission believes this study will enhance its efforts to educate property owners, management companies, newspapers and other advertising media, as well as property seekersand other members of the general public, in the requirements of state and federal fair housing laws. The Commission also believes this study will provide not only a means to measure the level of compliance with those laws in Iowa, but will also serve as an informational tool for those engaged in the sale or rental of housing, allowing them to fully understand the requirements of the law.These two steps of education alone will serve to prevent acts of discrimination in violation of state and federal fair housing laws. Additionally, this study will identify individuals and businesses in violation of the law, allowing the Commission to take appropriate action to ensure compliance, as well as preventing future incidents of discriminatory advertising.
The Commission recently conducted a study that examined newly constructed apartment complexes in the Des Moines metropolitan area to determine compliance with the design and construction requirements found in state and federal fair housing laws.[7] The study, which was completed in the fall of 2007, utilizedtesters to pose as potentialapplicants for the purpose of inspecting residential rental units covered by the law to determine whether the property met the design and construction requirements under the law. The Commission intends to follow a similar protocol in its review of advertising; this protocol will include press releases and other efforts to inform – ahead of time – the housing and rental communities of the study. The Commission is currently involved in sharing the results of this study with builders and planners of apartment complexes, as well as with the general public. The Commission believes that in disseminating its findings, it is furthering the awareness and knowledge of all the parties involved in planning and building apartment complexes and ensuring that federal and state design and construction requirements are met. Additionally, by revealing the shortcomings in compliance with the law, this study will increase public awareness of the barriers that persons with disabilities continue to face as they seek rental housing, and may lead to improvements in the identification and elimination of such obstacles.[8]
Similarly, the Commission believes that in performing and publishing this study of discriminatory housing advertising, the public will be better informed as to the requirements of federal and state fair housing laws. This will aid those engaged in the sale and rental of housing to better conform their advertising practices to the requirements of these laws.
II. Methodology
In conducting this study, the Commission will review rental and sales ads in newspapers, shoppers, and online publishers for residential properties located in approximately tendifferent cities in Iowa.[9] This studywill be conducted from April 15 through June 30, 2008. Advertisements will be reviewed for any questionable or “possibly discriminatory” language, phrases, photographs, illustrations, symbols or forms.[10]
The Commission will set up a database, which will record the key data, categorized by (1) city, (2) advertisement, (3) source, (4) date reviewed, (5) advertisement contact information, and (6) any questionable or possibly discriminatory wording, phrases, photographs, illustrations, symbols or forms. The Commission will follow up on all questionable advertisements that are found. The Commissionwill seek to resolve any issues or problems with an advertisement through discussion and consultation with the appropriate parties.The Commissionwill also offer training and educational materials to both the party that placed the advertisement, as well as the media outlet which published the advertisement.
The Commission will attempt to resolve all possible conflicts through discussion or negotiation; however, if questionable or discriminatory content issues cannot be resolved,the Commission’s executive director may initiate a Commissioner’s Complaint. The State of Iowa gives the Commission, a commissioner, or the attorney general the authority to make, sign, or file a complaint, just as any aggrieved individual may.[11]
III. Law
HUD enforces Title VIII of the Civil Rights Act of 1968, which is the federal discrimination law commonly referred to as the Fair Housing Act.[12] The Fair Housing Act contains this provision related to the advertisement of housing units for sale or rent:
[I]t shall be unlawful –
(c) To make, print, or publish, or cause to be made, printed or published any notice, statement or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or any intention to make any such preference, limitation, or discrimination.[13]
The Commission is authorized by Iowa law to enforce the Iowa Civil Rights Act of 1965 as amended.[14] The Iowa Civil Rights Act of 1965[15]also has a provision prohibiting discrimination in housing sales or rental, including a provision similar, but not identical,
to the federal statute that prohibits discrimination in advertising:
It shall be an unfair or discriminatory practice for any person, owner, or person acting for an owner, of rights to housing or real property, with or without compensation, including but not limited to persons licensed as real estate brokers or salespersons, attorneys, auctioneers, agents or representatives by power of attorney or appointment, or any person acting under court order, deed of trust, or will:
(3) To directly or indirectly advertise, or in any other manner indicate or publicize that the purchase, rental, lease, assignment, or sublease of any real property or housing accommodation or any part, portion or interest therein, by persons of any particular race, color, creed, sex, sexual orientation, gender identity, religion, national origin, disability, or familial status is unwelcome, objectionable, not acceptable or not solicited.[16]
While federal law is not controlling in evaluating the Iowa Civil Rights Act, Iowa courts traditionally turn to federal law for guidance in interpreting the state law.[17] Although there are differences between the federal and the state fair housing laws, they are substantially equivalent.[18]
Federal and state fair housing laws prohibit the making of any housing-related notice, statement, or advertisement that “indicates any preference, limitation, or discrimination,”regardless of the actor’s reason for communicating in this way. Discriminatory intent on the part of the defendant need not be shown, essentially making the fair housing“notice, statement or advertising” provision a “strict liability” statute. All that is required to establish liability is that the challenged notice, statement, or advertisement be made “with respect to the sale or rental of a dwelling” and “indicate” discrimination based on race or some other prohibited factor.[19] Two groups of potential defendants are targeted by the federal and state advertising regulations -- (1) persons engaged in the sale or rental of housing who themselves make, print, or publish or who cause others to make, print, or publish their discriminatory notices, statements, or advertising; and (2) newspapers and other advertising media that make, print, or publish the offending materials of others.[20]
HUD regulations address in detail two particular groups of advertising[21]- the first is advertising that contains a word, phrase, or other indication of a discriminatory preference or limitation; and the second is advertising that selectively uses media, locations, logos, or human models to convey an illegal preference or limitation.[22]
The Fair Housing Act regulations prohibit “[u]sing words, phrases, photographs, illustrations, symbols or forms which convey that dwellings are available or not available to a particular group of persons because of race, color, religion, sex, handicap, familial status, or national origin.”[23] HUD regulations require that the advertisement not be facially discriminatory, and that advertisements not use any discriminatory indicators. There are exceptions to this requirement, such as an exemption from gender discrimination in advertisements for situations where the sharing of living areas is involved.[24]
Three prohibited bases of discrimination – handicap, familial status, and sex – are subjects of some additional guidance in HUD’s advertising regulations. With respect to handicap, the applicable regulation not only lists various inappropriate words (e.g., “blind,” “retarded,” “impaired”), but also makes clear that it is not intended to restrict “the inclusion of information about the availability of accessible housing in advertising dwellings.” With respect to familial status, the applicable regulation lists various inappropriate words (e.g., “adults,” “singles,” “mature persons”), but also makes clear that it is not intended to restrict advertisements for “housing for older persons” (which is exempt from Title VIII’s ban on familial status discrimination).[25] Discrimination can also be suggested by giving directions to housing developments with maps or written instructions that include racially or religiously identifiable landmarks or by describing an area with names of local facilities, such as private schools or country clubs that are used exclusively by a particular race, religion, sex or national origin.[26]
A second type of advertising that HUD regulations identify as violating the Fair Housing Act is the selective use of content or media based on race or some other prohibited ground.[27] One area that this section of regulation covers is the exclusive or predominant use of white models in real estate advertising. This applies to the placing of a single advertisement that depicts a large group of all white models, as well as an advertising campaign involving the repetitive publication of advertisements depicting a large number of all white models.[28] The regulations do not limit discriminatory conduct to only the use of white models in this regard, but any advertising that contains the selective use of content or media based on a prohibited ground is a violation.[29] The HUD regulations state that the use of models in advertising should portray persons in an equal social setting and indicate to the public that the housing is open to all without regard to race, color, religion, sex handicap, familial status or national origin, and is not for the exclusive use of one such group.[30]
Federal and state fair housing laws contain several exemptions for the actual practice of discriminatory renting or selling, exempting individuals meeting certain qualifications from the discrimination requirements in renting and selling. For example, state and federal law exempts property owners who are leasing rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independently of each other, if the owner actually maintains and occupies one of such living quarters as his residence.[31] However, advertisements and statements are not covered under these exemptions.[32] Therefore, while a landlord may be free through an exemption to engage in discriminatory practices, he is not free to publicize his intent to discriminate.[33] Courts have found there is some evidence that discriminatory housing advertisements in newspapers was precisely one of the evils that the Fair Housing Act was designed to correct.[34] This gives regulatory authorities such as the Commission the flexibility to identify and correct problematic advertising, in the hopes of deterring future discriminatory conduct.
IV. Conclusion
The Final Report for this study will be released on or before September 15, 2008 and will contain the findings of the study. These findings will include the number of ads reviewed in each city, the number and nature of ads referred to as possibly discriminatory, the number and nature of ads that were resolved after consultation with the advertiser or media publisher, and the number and nature of ads resulting in Commissioner Complaints. The report will be issued to various stakeholders and consumer agencies across the state. Included will be various tenant/landlord associations, municipal human/civil rights commissions, the Iowa Newspaper Association, as well as any specific print or alternative advertisers from which the Commission examined advertisements. The report will also be made available for public review on the Commission’s website.[35]
1
[1] Jaimie Mancham-Case is a second year law student at The University of Iowa College of Law; Jordan Roling is a first year law student at DrakeUniversityLawSchool.
[2]
[3]Iowa Code §§ 216.5 (2), (3) (2007).
[4]Iowa Code § 216.5 (6) (2007).
[5] For additional information on this grant or the Department of Housing and Urban Development, see, and
[6] In Chicago Lawyers’ Committee For Civil Rights Under Law, Inc. v. Craigslist, Inc., __ F.3rd __ (2008), the 7th Circuit Court of Appeals held Craigslist, an online provider, was not a publisher or speaker of posted notices, but merely a messenger; and therefore not liable under Title VIII of the Civil Rights Act of 1968 for discriminatory ads placed by third parties. In light of this court decision and pursuant to HUD directive, the Iowa Civil Rights Commission will pursue legal remedy only against the individual or entity that placed the discriminatory ad and not Craigslist, Inc. or other similar online provider.
[7]Final Report: Design and Construction Testing, Iowa Civil Rights Commission (2007). Available at
[8]Final Report: Design and Construction Testing, Iowa Civil Rights Commission (2007). Available at
[9] The study will involve various cities located in different geographic regions of the state.
[10] 24 C.F.R. § 100.75(2007); showing that what constitutes discriminatory notice includes, but is not limited to, these categories.
[11]Iowa Code § 216.15 (1) (2007).
[12] Title VIII of the Civil Rights Act of 1968 and its subsequent amendments are codified in 42 U.S.C. § 3601-3639.
[13] 42 U.S.C § 3604 (c) (2007).
[14]Iowa Code § 216.5 (2007).
[15] The Iowa Civil Rights Act of 1965 and its subsequent amendments are codified in Iowa Code § 216.
[16]Iowa Code § 216.8 (3) (2003).
[17]Vivian v. Madison, 601 N.W.2d 872 (Iowa 1999).
[18]While Title VIII is limited to residential property, the Iowa Civil Rights Act includes commercial as well as residential property. For purposes of this study, the Commission will only be examining advertising for residential property. While the Iowa Civil Rights Act includes all of the protected groups as Title VIII, it also extends its protections to sexual orientation and gender identity.
[19] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-2 – 15-3.
[20] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-3.
[21] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-11.
[22] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-11.
[23] 24 C.F.R. 100.75 (2007).
[24] 24 C.F.R. 109.20(b)(5) (1995); in 1996 HUD removed part 109 of 24 C.F.R. According to HUD, while this information is helpful to recipients, HUD will more appropriately provide this guidance and information through handbooks and other materials. (see Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-10).
[25] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-13.
[26] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-14.
[27] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-13.
[28] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-24 (quoting Housing Opportunities Made Equal, Inc. v. Cincinnati Enquirer, 943 F.2d 644 (6th Cir. 1991).
[29] The use of all white models is one example of a possible violation, the use of models should reasonably represent all groups in the area. Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-28.
[30] Robert G. Schwemm, Housing Discrimination: Law and Litigation, Thompson West, 15-28.
[31] 42 U.S.C. § 3603 (b) (2) (2007); Iowa Code § 216.12 (5) (2007).
[32] Robert G. Schwemm, Discriminatory Housing Statements and § 3604(c): A New Look at the Fair Housing Act’s Most Intriguing Provision, 29 Fordham Urb. L.J. 187, 217 (2001).
[33]United States v. Hunter, 459 F.2d 205, 213 (4th Cir. 1972).
[34]Id.at 211.
[35] The report will be made available on the Iowa Civil Rights Commission’s website,