Section 804(c) of the Fair Housing Act (FHA), codified at 42 USC § 3604(c), prohibits advertisements that “indicate[ ] any preference” on the basis of race, national origin, and other protected categories. The text of the FHA, however, is ambiguous regarding its applicability to the language in which housing advertisements appear, raising the specter of potential liability in communities where residents speak and write in multiple languages. Using Chicago’s Chinatown as a case study, this Comment examines whether the exclusive use of Chinese-language advertisements for housing in Chinatown violates § 3604(c). I begin by enumerating a series of factors that courts should consider: (1) the demographics of the relevant community, (2) the identities and language capabilities of the parties, (3) how an “ordinary reader” in the relevant community would perceive the advertisement, and (4) translation costs. The goal of this approach is to strike a workable balance between minority-language advertisements’ inclusive effect with respect to immigrant landlords and prospective residents, while acknowledging Congress’s intent to combat exclusionary housing messages.
Furthermore, I argue that even if such advertisements technically run afoul of § 3604(c), courts should interpret the FHA as a legislative scheme that protects minority communities’ housing rights, rather than uncritically mandating integration and assimilation. Minority-language communities generate network effects by bringing together speakers and readers of a common language. To avoid unnecessarily jettisoning these benefits, courts should construe § 3604(c) to permit advertisements that convey the existence of a language community. Such advertisements signal that individuals who may be unwelcome elsewhere are welcomed in the community, but they do not necessarily “indicate” that nonspeakers and nonreaders are unwelcome. Thus, courts should hesitate before enforcing § 3604(c) against Chinese landlords and newspapers absent extrinsic evidence of discriminatory intent.
Vernon, Emily A.
"Exclusionary Advertising? The Case for Cautious Enforcement of 42 USC § 3604(c) Against Minority-Language Housing Advertisements,"
University of Chicago Law Review: Vol. 87
, Article 4.
Available at: https://chicagounbound.uchicago.edu/uclrev/vol87/iss1/4