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.
Facebook allows this exclusion the worst possible way. An advertiser simply chooses to exclude those who identify with a particular ethnic or racial group. We can hope most management companies would know better than to discriminate in such an obvious way. That doesn’t mean, however, that less obviously exclusionary forms of targeted advertising will pass muster. Courts have found that an advertising campaign using exclusively white models may discriminate against blacks by implicitly excluding them. An advertising campaign promoting events for singles may discriminate against families by suggesting they are unwelcome. It is the advertising campaign as a whole, not just the individual advertisement, that the Court will consider when looking at claims of discrimination. See, Tyus v. Urb. Search Mgt., 102 F.3d 256, 265 (7th Cir. 1996). Do you only advertise in zip codes with mostly white residents? It could be interpreted as an effort to exclude blacks. Do you choose keywords for Google advertising that target young singles? This might be seen as an effort to exclude residents based on age or family status. In an age of “narrowcasting” it is not so much the content of an advertisement that discriminates as the choice of audience.
In the brave new world of internet advertising it seems like a waste to place ads that will be seen by folks you don’t think want to rent from you, but when it comes to race, religion, disability and the like it is the tenant, not the landlord, who should decide where he or she wants to live. The shiny tools provided by internet advertisers can be hard to resist, but housing providers need to be careful how they use them because the flip side of every positive target is a negative exclusion, and exclusion is the definition of illegal discrimination.