First, a quiz: Which of the following apartment ads would be considered discriminatory?
A. One-bedroom apartment near UCSD, perfect for a grad student.
B. Two-bedroom apartment adjacent to park and St. Mary's Catholic Church.
C. Condo for rent in upscale neighborhood. Minorities need not apply.
D. Single-floor loft, perfect for artist. Will accept rental apps only from individuals who oppose George W. Bush.
The federal Fair Housing Act, passed in 1968 under the umbrella of the Civil Rights Act, prohibits landlords and property owners from denying individuals the right to rent or purchase housing based on race, color, gender, religion, national origin, disability or familial status (married or single, kids or no kids). Nor can advertisements for housing contain any words that might imply a preference for one type of person over another, no matter how subtle that wording is.
So, if you answered A, B and C for our quiz, you know your housing law. As for option D, for now there's no federal law that prohibits discrimination against Republicans.
Earlier this month, a group of lawyers in Chicago filed a lawsuit against craigslist, the multi-city, multipurpose online forum popular for its free classified ads. The Chicago Lawyers Committee for Civil Rights Under Law, or CLC, tracked rental ads posted on Chicago craigslist from July 2005 through mid-January of this year. Some of the ads they found were clearly discriminatory: "African Americans and Arabians tend to clash with me so that won't work out," reads one rental ad posted on July 6. Another ad posted last month makes no similar attempt to justify its author's preference: "NO MINORITIES."
The lawsuit also takes aim at ads that contain so-called "code words" like "ideal for a single person," "great for a young couple just starting out" or "perfect for a grad student." That language is considered equally discriminatory under the Fair Housing Act, said Stephen Libowsky, lead attorney for the CLC lawsuit.
"Just because you're subtle doesn't mean the effect is any different," he said. "It's a very serious problem in places like Chicago and other communities where low-income and even middle-income families are blocked out of housing because people don't want to rent to people with kids. Ads like [ideal for a young couple], whether you want to call them code words or direct words, they have been, historically, problems...[and] a way to screen out certain types of families."
The CLC lawsuit also notes ads that mention whether a church, synagogue or mosque was located nearby-suggesting that the person who posted the ad might favor people of a certain religion over other potential tenants. "Someone's chosen to tell you that feature," said Libowsky. "I've yet to go to a neighborhood where the only thing in that neighborhood is a church or a mosque."
The problem is, when the Fair Housing Act was passed, the Internet didn't exist. It was only print publications that had to worry about compliance.
"Ads like those found on craigslist wouldn't make it into print classifieds," said David Kline, an enforcement specialist with the nonprofit Fair Housing Council of San Diego. "The person who places the ad and the publisher [of the ad] are both responsible if a discriminatory ad is run in the newspaper."
Newspapers have established safeguards to catch discriminatory ads.
"If you try to place an ad in, for example, the Union-Tribune today that says No African-Americans,' you would not be able to place that ad. The U-T would stop you both because they have computerized filters that filter out certain key words, but also they have human beings reading these ads to make sure they don't imply any form of discrimination.
"So you would not be able to place that ad," Kline said. "You would end up either going to craigslist to place the ad or place a neutral ad [in the newspaper] and then discriminate later on in the process if that was really your intent."
So why isn't craigslist equally as liable as print publications? It's something called the Communications Decency Act-or CDA-a provision of the Telecommunications Act of 1996. The CDA says, essentially, that no provider of an interactive computer service will be held accountable for any information "provided by another information content provider"-in other words, the person who wrote the housing ad.
Jim Buckminster, craigslist CEO, said the lawsuit will likely be dismissed because of the CDA. But, he added, "craigslist has no need to hide behind this well-established immunity.... Discriminatory postings are exceedingly uncommon"-the CLC found 100 such ads out of 200,000 ads posted during that six-month period, says Buckminster-"and those few that do reach the site are typically removed quickly by our users through the flagging system that accompanies each ad."
Craigslist has also added a highlighted message at the top of housing-ad pages, warning that "stating a discriminatory preference in a housing post is illegal."
Still, a quick glance through San Diego craigslist by CityBeat revealed a handful of discriminatory ads, though none as egregious as some found by CLC lawyers. An ad posted Feb. 20 seeks "straight M/F roommate." California housing law says ads that discriminate based on sexual orientation are illegal. Another ad posted Feb. 12 includes the same requirement. A number of ads specify a preferred age range, which is also illegal under state law.
Kline said that in a roommate situation, it's OK to specify a gender preference.
Housing-rights attorneys worry that the popularity of online advertising, combined with the immunity offered by the Communications Decency Act, could whittle away at the protections provided by the FHA. Recently, a New Orleans housing watchdog group reportedly found 68 instances of discrimination on Katrinahousing.org, a website set up to help hurricane victims find housing.
"We assumed that if publishers of newspapers are held liable for ads, so too will Internet providers," said Nadine Cohen, director of Boston's Fair Housing Project. But lawsuit after lawsuit filed by housing-rights attorneys have been tossed out because of the Communications Decency Act, she said. The Fair Housing Council of San Diego is currently a co-plaintiff in a case against the website Roommates.com for similar discriminatory advertising. The case is currently on appeal.
"We know that somebody cannot say to a prospective tenant, I do not rent to Latinos or African-Americans.' They cannot put that in [a print] ad, but they can put that on the Internet," said Cohen.
"This is a big fight," she added. "The Internet is a big money-making enterprise, and they're not going to give up easily."
Plenty of law-oriented bloggers have weighed in on the craigslist lawsuit, most coming down on craigslist's side. Many think any legal ruling demanding that Internet providers screen public posts would have a chilling effect on the web as a free-speech forum.
Libowsky, the Chicago lawyer, said he's received a mix of e-mails-some congratulatory, some "truly hateful"-since the lawsuit's been filed. "I don't know if it's generational, or if there's something else going on," he said. "A large number of people think society may well have changed to a point that we don't need to worry about [discriminatory ads] because they're few and far between.... Obviously, those of us who lived through the '60s and the '70s have a very different perspective on some of these issues and how they may grow and spawn into bigger problems."