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Between the Lines 

In the world of fair housing, "discrimination" is in the eye of the beholder

"For Rent: Must see to believe! 3-BR, 1-BA executive apartment in low-crime Chittenden County neighborhood. Quiet, second-story walkup across from First Methodist Church. Walk-in closets, lake view, unfenced yard near lake. Two-person max. occupancy. Ideal for young professionals/empty nesters. Please: no smokers, big dogs, Muslims or fat people. Se habla español. Gays and lesbians welcome! $900/mo. Credit check and proof of employment required. Not Section 8 approved."

Here's an educational exercise in fair housing: Edit out all the problematic elements in this fictitious ad, aside from the absurdity of a three-bedroom, lake-view apartment in Chittenden County for $900 per month. Then, we'll tell you how much this ad costs - in fines and legal fees for discriminatory housing practices.

First to go would likely be the politically incorrect and patently offensive phrases. Most people know that landlords cannot discriminate against Muslims, or any other religion, race or ethnicity. However, "Se habla español" is acceptable, since it's considered "inclusive" language, and people other than Latinos speak Spanish.

But what about overweight people? Actually, an ad that reads "no fat people" is OK, as long as it doesn't refer to them as "morbidly obese," which is a recognized disability under the Americans With Disabilities Act and, thus, a federally "protected class."

"Gays and lesbians welcome!" doesn't break any state or federal laws, either. In fact, "queers welcome!" would also be OK. However, "gays and lesbians desired" would be a violation of Vermont law because it expresses a preference based on a tenant's sexual orientation. "No queers!" would, of course, be grounds for a lawsuit.

Perhaps you're thinking, "Must see to believe!" "lake view" and "second-story walkup" discriminate against the visually impaired and people in wheelchairs. Nice try, but no. Turns out, that language is fine. It's the more innocent-sounding language - including "executive apartment," "low-crime" neighborhood, "quiet building," "ideal for young professionals/empty nesters" and even "proof of employment required" - that can get a landlord, and the newspaper that publishes the ad, sued.

Seven Days learned this lesson the hard way. In 2007, Vermont's largest weekly was one of several newspapers around the state, including the Barre-Montpelier Times-Argus and the Rutland Herald, accused of publishing allegedly discriminatory language in their classified pages. The Vermont Human Rights Commission reports that similar complaints, "still in the investigative process," have also been filed against other newspapers.

Unfortunately, this wasn't our first infraction. In 2003, Seven Days was notified that some of its housing ads included objectionable language such as "professional couples preferred" and "no students." As a result, the paper agreed to run three years of free fair- housing notices. Despite "training" received by the Champlain Valley Office of Economic Opportunity, however, we learned last year that 10 more discriminatory ads - among 20,000 - had slipped through the cracks over a period of two years. On its second offense, Seven Days opted for a mediated settlement rather than risk a long and potentially expensive court fight. Still, the paper's publishers were shocked by the harshness of the penalty, especially since no one claimed to have been denied housing due to the objectionable ads. After extensive negotiations, the paper was fined $45,000, including $30,000 in free advertising over two years. The paper also incurred more than $2500 in legal fees.

For purposes of comparison: In October 2006, the U.S. Postal Service's mail-processing facility in White River Junction was fined $40,000 for failing to address "willful and serious" workplace safety violations due to machines that could cause employees serious lacerations and bone fractures. In July 1990, International Paper of Ticonderoga, N.Y., was fined $32,000 for failing to notify the proper authorities that it had accidentally released 88 pounds of deadly chlorine gas into the air. A Florida doctor was fined $10,000 for amputating the wrong foot of one patient and cutting the toe off another without her consent.

Still, it could have been worse: Some years ago, Southern California Community Newspapers, a chain of 31 weeklies, incurred more than $100,000 in legal fees and was forced into bankruptcy for running a single ad that read "adults preferred." The lawsuit reportedly eliminated more than 100 jobs.

The nonprofit agencies that brought the complaint against Seven Days - the Housing Discrimination Project of Holyoke, Mass., and Vermont Legal Aid - will not disclose the terms of the other papers' out-of-court settlements, as they're protected by strict confidentiality agreements. But based on the $45,000 penalty imposed on Seven Days, one might assume the paper's transgressions were wanton and egregious, the advertising equivalent of rallying a lynch mob. Surely, someone within the classified department must have let an ad slip by that read, "No Asians or Jews."

Nothing of the sort. As Seven Days learned later, the language of housing discrimination is often vague, subjective and open to conflicting interpretations. These days, seemingly neutral and innocuous phrases such as "professional tenants encouraged to apply" and "no big dogs" can be read as more than just deterrents against night owls and Great Danes. Advocates say this language can also be code for "no families with children." Why? Fair-housing advocates say they have reason to believe that big dogs and small children often go hand in hand - and landlords know it.

If such logic strains the bounds of rationality and fairness, these are the rules by which newspapers are expected to play. Indeed, fair-housing advocates readily admit that one reason they go after newspapers is because they're easy targets with deep pockets. As Jamie Williamson, executive director of the Massachusetts Fair Housing Center in Holyoke, puts it: "If you don't like the rules of the game, get out!"

To add insult to injury, print publications that rely on rental and real estate listings for their revenues face stiff competition from free websites, such as Craigslist and Roommates.com. So far, the courts have held them to a different legal standard. Even when their users violate state and federal fair-housing laws, the websites themselves are held faultless.

Catherine Nelson, general manager of the Rutland Herald and Times-Argus, says this disparity puts newspapers such as hers at a distinct disadvantage compared to their online competitors. Newspapers, she adds, aren't given meaningful guidelines for what qualifies as discrimination.

"We kept asking for language that was new, or something we should be looking at, and they didn't have a good answer," says Nelson, who is barred from disclosing the terms of her papers' settlement. "How can you hold us responsible for something when you can't state exactly what it is?"

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Forty years ago this month - and just one week after the Rev. Martin Luther King Jr. was gunned down - President Lyndon Johnson signed into law the Fair Housing Act (FHA). Seen as the centerpiece of the Civil Rights Act of 1968, the FHA specifically outlawed discrimination in housing based on race, color, creed, religion, national origin or sex. The act was amended in 1988 to add familial status and disabilities as protected classes; in Vermont, the law was further extended to prevent discrimination based on marital status, sexual orientation, gender identity, source of income and age.

For decades, the most common forms of discrimination reported under the FHA were racial - typically, against people of color. It wasn't until about four years ago that the number of complaints filed on behalf of people with disabilities outstripped those based on race. Last year, 43 percent of the 10,000 fair-housing complaints filed nationwide were based on disabilities, compared to only 39 percent based on race, according to the U.S. Department of Housing and Urban Development (HUD). The third most common offense nationally, and the most common in Vermont, is discrimination against families with children.

The 1988 FHA amendment specifically states that publishers, as well as landlords and advertisers, can be held liable for ads that are later determined to be discriminatory. This holds true even if - as was the case with the newspapers targeted in Vermont - there's no "aggrieved party" claiming to have been denied housing. Last year, about 6 percent of the 10,000 complaints filed nationwide were brought against newspapers and magazines, according to HUD.

For years, HUD has funded fair-housing advocacy groups, such as Vermont Legal Aid and the Housing Discrimination Project, which look for and investigate discriminatory housing practices, then file their complaints. Often, these investigations involve sending out "testers" of different races, genders and/or ethnicities to try to identify offending landlords or sellers.

Occasionally, investigators will respond to ads by phone to look for "linguistic profiling" - that is, the use of auditory cues to identify a person's race or ethnicity. One such study, conducted last year in Chittenden County, found that the callback rates for white callers were significantly higher than those for African-American and Latino callers. Minorities were also much more likely to have extra burdens placed upon them, such as background checks and restrictions on the numbers of residents.

Generally speaking, newspaper publishers don't deny that discrimination occurs, or that the pressures of deadlines occasionally allow problematic language to find its way into print. But ever since the 1988 FHA amendment, publishers have struggled to define their role as enforcers of the fair-housing laws. For years, publishers and their attorneys defended themselves by claiming they shouldn't be held accountable for their advertisers' intentions, nor should they be required to restrict free speech or possess the legal expertise to determine all possible FHA violations. Nearly all these arguments have failed in court.

Nevertheless, neither the courts nor the federal government have provided publications with clear, specific and comprehensive guidelines for what constitutes discriminatory advertising, especially when the "code words" used to discriminate can change literally overnight. (Would "no wide stances" have been illegal the day before Idaho Sen. Larry Craig's bathroom bust?) As a result, many newspapers don't realize they're breaking the law until it's too late.

That was the case for the apartment listings that got Seven Days into hot water. Of the 10 discriminatory ads alleged in the complaint, six were problematic because they set limits on the number of residents allowed, such as "single occupancy only," "efficiency for one person" and "two-person maximum."

Two others expressed preferred ages for potential tenants, such as "adults' apartment" or "quiet adults desired." One ad claimed that the apartment was "not Section 8 approved," a reference to the federal low-income housing program. By law, landlords - and by extension, newspapers - also cannot discriminate against applicants who use Section 8 vouchers to pay their rent.

One litigable listing, which advertised a "charming, two-bedroom apartment" with "off-street parking for two cars" noted that the place was "ideal for a couple." Had the ad read "ideal for a family," it would have been OK.

It should be noted that none of the ads that got Seven Days into trouble made reference to race, color, religion, ethnicity, gender, disability or sexual orientation. The entire basis for the complaint was "an ongoing practice of discriminating against families with children."

As Publisher Paula Routly noted, "'Single occupancy only,' 'Not Section 8 approved' - these are terms we thought described physical attributes of the property, as in occupancy limits for fire code. In fact, the pamphlet we were given for reference said that language was OK. Turns out it was designed for landlords, not publishers."

In an example of "shoot first, ask questions later," Seven Days was eventually provided with a thorough, 21-page handbook meant for publishers - funded in part by fines levied against it and other newspapers - but only after the weekly's case had already been settled. The handbook formed the basis of a mandatory, four-hour training on housing discrimination for Seven Days staff. Although the session was meant to clarify the subtle, and no-so-subtle, cues that some landlords use to dissuade unwanted tenants, in many respects, the session raised more questions than it answered.

*************

The training, held in March, was led by Jamie Williamson - a woman who, by her own admission, is "extremely passionate" about the issue of housing discrimination, and understandably so. Her grandmother, a white woman, had children with her grandfather, a black man, who was later jailed because of the biracial relationship. Years later, Williamson's grandmother rented a home in a "nice, white neighborhood." However, when the landlord later saw her dark-skinned children, he immediately evicted the family.

Williamson's father, an African-American, suffered a similar indignity. When he tried to move his family into a better school district in the white section of town, his neighbors launched a petition drive to keep them out, out of fear that a black family in the area would drive the crime rate up and property values down.

Today, Williamson says she lives in a racially mixed neighborhood in Holyoke. Still, despite her years of work as a fair-housing advocate, she admits that when it came time for her to find a place to live, she deployed a "front," or white person - in this case, her husband - to speak on her behalf. As she recalls, "I knew enough to send someone in who didn't look like me, so they couldn't discriminate."

Fair-housing advocacy in New England is somewhat behind the times, Williamson insists, in that only in the last few years have newspapers and magazines faced lawsuits. (The first major court ruling against a publication for discriminatory advertising was against The New York Times, in 1991.) The impetus, she says, came from a Massachusetts landlord her agency sued over a discriminatory rental listing. She says the landlord defended himself by claiming that, since he didn't know what to write in his own ad, he'd copied the wording from another ad.

"When you put something in the newspaper, like it or not, people believe it to be true," Williamson says. "So, if there's an ad that says 'No children,' two people are affected: the prospective tenant looking for that housing, and the landlord, who assumes it's OK to discriminate."

Interestingly, the law doesn't require landlords or homeowners to rent or sell to people in "protected" classes; it simply prohibits them from making their decision based solely on their protected-class status.

The law makes an exception for roommates and, in Vermont, owner-occupied properties with three units or less. In these cases, the law permits a landlord to discriminate against someone in a protected class - i.e., if you don't want to share your home with a person of another race, religion or sexual orientation, you cannot be compelled to do so. However, it's illegal for you to advertise that fact.

But even this exception has an exception. A woman looking to share an apartment may place an ad that reads, "Female roommate seeking same." However, she cannot place an ad that reads "Christian, straight female seeking same." In effect, this woman cannot be forced to live with a non-Christian lesbian, or a man. She just can't advertise her preferences.

"Landlords always say, 'So, you're teaching us how to discriminate,'" Williamson says. "Yes we are. It's a double-edged sword. But I can't fix everything." Unfortunately for newspaper publishers, they're expected to do that policing on behalf of the government, and also fund its enforcement.

Several Seven Days staffers asked: What if a landlord is renting out a unit that's less than ideal for small children, such as one adjacent to an open gravel pit, a steep cliff or a rapidly flowing river? As Williamson explains, that unit may be the only one that family can afford, and a landlord has no right to make those judgments on behalf of others.

"Where's the mother and father in all this?" she asks indignantly. "You've taken away their parental rights and assumed they're incompetent. You're basically telling me that I'm an unfit parent and would let my child roam outside unattended."

The safest way to write a housing ad and not get sued, Williamson adds, is to describe the unit, not the potential tenant. Include such information as the number of bedrooms and bathrooms, whether there's parking on the premises, what street the place is on and whether the rent includes the cost of utilities.

That sounds easy enough. However, even neutral-sounding descriptions can lay the groundwork for a fair-housing complaint. For example, an ad that mentions a unit's proximity to a place of worship ("directly across the street from Ohavi Zedek Synagogue"), a religious school ("walking distance to Rice Memorial High School"), an ethnic neighborhood ("in the heart of Spanish Harlem"), or even a geographic area that appears on maps but has a history of racial or ethnic tensions (Howard Beach, N.Y., for instance) can get an advertiser, or a newspaper, into trouble.

Confused? It gets worse. Consider an ad that reads, "House on busy street with no sidewalks." Presumably, such information is relevant to any potential renter, be it a family with young children, a student who rides a bicycle to school or a retired couple who no longer drive. But according to Williamson, this, too, would raise a red flag: "Right off the bat, if you said, 'House on a busy street,' what that ad says to me is, 'For those of you who have children, don't bother to apply.' You are, in essence, telling me, 'You don't want to live here.'"

Williamson's recommendation: When it comes to housing ads, "less is more."

Unfortunately, for small, community publications that make a living on real estate listings, less is less - in profits, that is. When New Hampshire's Monadnock Ledger was hit with a discrimination complaint several years ago, then-Publisher Geordie Wilson decided it wasn't worth the fight. "We ended up settling because it'll cost you so much money to fight these things."

Plus, newspapers' biggest competitors for housing and real estate ads - Craigslist and Roommates.com - play by a different set of rules. In February 2006, Craigslist, the San Francisco-based online forum of classified ads, was sued by a consortium of Chicago attorneys for posting ads that allegedly discriminated based on race, ethnicity and religion. The site included postings with language such as "only Muslims apply" and "no minorities." Earlier this month, the 7th Circuit Court of Appeals upheld a lower court ruling that Craigslist cannot be held liable for discriminatory language posted by its users.

Why? Because Craigslist doesn't review or edit its users' content; that means it's a bulletin board, not a publication.

"If competing advertising media, such as Craigslist, are now deemed to be exempt from such requirements, it is patently unfair that print newspapers are not exempt," argues M. Dickey Drysdale, editor and publisher of the Herald of Randolph. "Our right of free speech and press must be at least equal to the rights of online outlets. We shouldn't be required to fight skirmishes with government bureaucracies when our most dangerous competitors may do as they please."

To complicate things, the line between newspapers and online "bulletin boards" is increasingly narrow. Indeed, six of the offending ads in Seven Days were never published in print; posted directly by landlords, they only appeared on the paper's website.

Now, consider the case of Roommates.com, which was accused by the Fair Housing Council of San Fernando Valley of violating the Fair Housing Act by requiring users to provide gender, sexual orientation and familial status information about themselves. At issue was Section 230 of the Communications Decency Act of 1996, which says that website operators are held immune from objectionable content posted by third parties. But the 9th Circuit ruled that Roommates.com "can be both a service provider and a content provider," and since the website's designers generated the objectionable language, it couldn't claim immunity under Section 230.

Richard Karpel, executive director of the Association of Alternative Newsweeklies, of which Seven Days is a member, said the law clearly favors one kind of content provider (websites) over another (print publications). Nonetheless, the AAN joined a "friend of the court" brief on behalf of Roommates.com's position in the case.

"It's weird for us," Karpel said. "But our position has been that Section 230 of the Communications Decency Act gives immunity to website publishers, and even though it puts the newspapers at a disadvantage, we'd rather keep it as it is, because we also have websites."

Make no mistake: Seven Days is keenly aware that housing discrimination is alive and well, in Vermont and elsewhere. As Kim Kendrick, assistant secretary for fair housing and equal opportunity at HUD, points out, blacks and Latinos who went looking for homes were discriminated against in one in five cases, according to a 2005 study. The figures, she suspects, are at least as bad for Asians and other minorities.

Since settling its complaint, Seven Days has adopted a strict new policy on the wording of it online and print housing ads. Still, Nelson at the Rutland Herald/Times-Argus says it's absurd that newspapers have now become the funding stream for suing other newspapers. "It just doesn't seem right," she says. "There's got to be an end to it somewhere."

Wilson, who's now the publisher of the Concord Monitor, seconds, "It's a racket. It's a stick-up game! And it's done all over the place, because that's how these groups fund themselves."

Williamson acknowledges the financial relationship between enforcement and advocacy, but makes no apologies for it. "Vermont has not spent a lot of time enforcing the Fair Housing Act," she says, "and there's going to be thousands more behind you who are going to get caught. It's only a matter of time."

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About The Author

Ken Picard

Ken Picard

Bio:
Ken Picard has been a Seven Days staff writer since 2002. He has won numerous awards for his work, including the Vermont Press Association's 2005 Mavis Doyle award, a general excellence prize for reporters.

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