How to Violate a Federal Civil Rights Law and Get Away With It

I’ve written before about the absurdities of “government speak” before, but a new memo from HUD’s Office of Fair Housing and Equal Opportunity takes things to a whole new level.

Since its passage in 1968, the Federal Fair Housing Act has prohibited landlords from making discriminatory statements in housing advertisements. (Note: It also applies liability to everyone involved in the process of publishing the ad, but that’s another post for another time.) Just as classified ads have moved from the printed newspaper to the online classified website, so too have landlords’ discriminatory statements. This prohibition is unique in federal law, one of the only limitations on speech rooted in civil rights’ protections.

And HUD has now published clear instructions on how to violate it and avoid prosecution.

In a memo entitled “Guidance for Handling Allegations of Internet-based Discriminatory
Advertising against Unidentified Respondents”
, Deputy Assistant Secretary for Enforcement and Programs Cheryl Zeigler instructs HUD investigators to dismiss complaints against landlords whose identities are obscured by websites and tied only to e-mail addresses. For reasons unknown to this author but which he hopes are rooted in ignorance rather than laziness, HUD has decided that some violations of federal law simply aren’t worth the trouble.

In fact, I’m nearly certain that HUD’s decision is born out of ignorance, because they have clearly demonstrated their commitment to prosecuting these specific types of violations to the FHA. In HUD v. Godlewski – a case I worked on while at the Chicago Lawyers’ Committee for Civil Rights – a landlord who hung a sign in the front window of his otherwise-exempt apartment building reading “no kids” was hit with more than $100,000 in damages, civil penalties, and attorneys fees.

This is not to say that HUD shouldn’t adjust its procedures in the handling of complaints against landlords made anonymous by the web. Not at all – by simply rearranging the steps of their typical investigations (determining whether the text of the ad is discriminatory before identifying the respondent) and adopting clear guidelines on what is and what is not a discriminatory statement (rescinded by another awful HUD memo in 1994), HUD could focus its limited resources on aggressively pursuing the landlords that create these ads.

Let’s hope that once HUD’s new leadership is approved by the Senate, procedures like this will be reformed.

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