A recent study from ProPublica, “Facebook Lets Advertisers Exclude Users by Race” describes how Facebook’s tools for audience targeting allow housing advertisers to exclude specific racial and ethnic groups from seeing their ads. Facebook justifies this practice with the argument that: “Everyone benefits from access to content that’s more relevant to them” and points out that targeted advertising is commonplace. This is certainly true – billboards in Spanish are generally found in communities with large Spanish speaking populations, and advertisements for hair care products and cosmetics aimed at black consumers are never found in mostly white suburbs. The positive side of targeted advertising has, however, an ugly negative equivalent. Everyone who is not targeted is excluded, and that exclusion may be illegal. Who’s not standing on the bulls-eye in this picture? A family, someone with a disability, perhaps a Muslim. Does that mean they are unwelcome? Perhaps not, but it sure looks likes it. More
Ignorance of the law is never a good idea. In a May 2, 2016 decision from the First Circuit it became clear that ignorance can be expensive. Castillo Condo. Ass’n v. U.S. Dep’t of Hous. & Urban Dev., 2016 WL 1732499 (1st Cir. May 2, 2016). The case was, as the Court observed, fact intensive, but a couple of observations about ignorance of the law explain much of the outcome.
The original complaining party, Carlo Giménez Bianco (“Giménez”) suffered from depression and anxiety. He wanted to keep his dog despite the Castillo Condominium’s no pets policy. He asked, he was rebuffed, and he moved out. He then filed a fair housing complaint. HUD’s initial investigation resulted in a charge of discrimination, which was referred to an Administrative Law Judge. The ALJ concluded after an evidentiary hearing that Giménez was not disabled and therefore not entitled to an accommodation. This decision was appealed to the Secretary of Housing and Urban Development, who reviewed the evidence and reversed, finding that Giménez was disabled. The case went back down to the ALJ to assess damages and penalties. The ALJ awarded only $2,000 in damages and a $3,000 penalty. The latter was based on his finding that the Condominiums were not motivated by malice, but were simply ignorant. This went back up to the Secretary, who again disagreed, raising the damage amount to $20,000 and imposing the maximum penalty, $16,000. The Secretary found that ignorance was an aggravating rather than a mitigating factor, and justified the maximum penalty. The Secretary’s decision was appealed to the First Circuit, which ruled in favor of the Secretary on every count. More