By Robert L. Cain
They say they didn’t mean to. They say their intentions were pure, and those intentions were bushwhacked by a “a computer error.” The April 9, 2021 issue of MIT Technology Review reported that Facebook (the company with the pure intentions) “is withholding certain job ads from women because of their gender.”
An audit conducted by researchers from the University of Southern California (USC) found that Facebook’s “ad-delivery system shows different job ads to women and men even though the jobs require the same qualifications.” The problem has yet to be resolved because the man who built the software apparently can’t fix it.
Nothing new here, either. In October 2016, Propublica “brought the issue to light” showing that the Facebook program allowed “advertisers of job and housing opportunities to exclude certain audiences characterized by traits like gender and race.” They didn’t mean to, but that’s what happened. And they can’t fix that, either.
It doesn’t matter if you “didn’t mean to.” It’s what somebody think you might have meant that matters. Both business owners’ and rental property owners’ “neutral” requirements can backfire and create legal issues that can result in misery and fines that can bankrupt that business or rental owner. Facebook has armies of lawyers to take on the federal government. Small businesses and rental owners have no such luxury.
Facebook is in trouble because they “unconsciously” steered people to ads by gender when gender was not a legitimate criterion—questions and ads “neutral,” result biased.
To avoid even the hint of bias interviewing questions and ads must be crafted carefully. Good luck with that, but some things will avoid hints of bias. Let’s look at how.
“Objective standards” and questions might be considered discriminatory because they have a “disparate impact” on one protected class of people. The Fair Housing enforcers created the concept of “disparate impact” because they discovered, sometimes logically, sometimes not, that some rental standards had a different impact on some classes of renters than they did on others.
Using any of these words will likely create a problem.
Restricted: Implies whites only
Adult: Implies children not permitted
Single: Implies children not permitted
Christians only: or Jews, Catholics, Muslims, etc.
Individual: Implies children not permitted
No children
Woman/Man: Can only discriminate if they must share a bath
Retired: Implies families not permitted
No more than two children: Nor can you specify any number of children, only total number of occupants, and even then you have to be careful to follow Fair Housing guidelines (more about that in a minute)
Older children only: or younger, for that matter
Whites only: or Blacks, Asians, Indians only
Workshop for dad: Implies gays and single parents not permitted
Mom will love. . .: Implies no gays or single parents
Family complex: Implies no gays or single parents
His & Hers Closets: Implies gays not permitted
Employed: Discriminates on the basis of source of income
Heterosexuals (or Homosexuals) only: Discriminates on the basis of sexual orientation
Even the following “neutral” words might be construed as biased.
Executive: Can be construed as excluding poor people, and implying whites only, because supposedly they are the only executives
Exclusive: Implies whites only
Private (as in “private club”): Implies whites, Christian or religious only
Integrated: Could be a code word for a minority community
Mature: Implies children not permitted
Physically fit: Implies not suited for handicapped
No play area: Could be construed as discouraging children
Quiet tenants only: Could imply children not welcome
Ideal for professional couple (large family, newlyweds, etc.): Picking out a group it is ideal for automatically discriminates against everyone else
Near Catholic Church, Jewish Synagogue, etc.: Implies steering. (A HUD official from Boston couldn’t understand the concept of steering, but it is basic real estate law.)
Then there are rental standards. A landlord or municipality might adopt a policy that says that people who call emergency services for help more than once can be evicted. That presents a problem for people who have survived domestic violence—a protected class. Other ental requirements state that only people with full-time jobs may be considered for tenancy regardless of income. That immediately disqualifies disabled veterans and senior citizens who even if they can afford the rent cannot work—two more protected classes.
Still another example is prohibiting leaving toys in the hall of an apartment building. That might permit leaving a motorcycle in the hall since that isn’t a toy, for most people anyway. That rule seems to be neutral but has the effect of discriminating against families with children since children are more likely to forget to bring their toys in. Families with children are another protected class.
Occupancy limits
In 1996 Congress enacted a law based upon a 1991 HUD memo stating that a two-person-per-bedroom occupancy standard was acceptable in most situations. By no means can that be considered a hard-and-fast rule. The figure can change depending on how the property is laid out. More occupants may be allowed if there are unusually large living spaces or bedrooms, and fewer occupants if the opposite holds true. Infants probably don’t count when calculating occupancy. Those policies could have a disparate impact on families with children.
There’s no sure way of telling what can put a target on the back of a landlord for a Fair Housing complaint. Complaints are subjective, meaning that it the “offended party’s” perception that counts and will result in an investigation. No one comes out ahead then.
How to write standards that are neutral but accomplish the same goal.
Wrong
Children may not play in the hall.
No more than 2 children and two adults permitted to occupy the premises.
Children may not swim in the pool alone.
Children may not leave toys in the halls or walkways.
Right
Residents and their guests are not permitted to play in the hall.
No more than four people may occupy the premises. Any new residents must fill out a rental application and be approved by the landlord.
No lifeguard is on duty at the pool. Tenants and their guests swim at their own risk. Or, children 10 and under must be accompanied by an adult.
No toys, bicycles, or other vehicles are to be left in the halls or walkways.
Back to “not meaning to.” If it’s a discriminatory standard, authorities assume you meant it to be even if you were doing your best to be fair. As to Facebook, who can tell their intentions? Of course they’ll say they’re unbiased and the whole problem is a “computer error.” And they have an army of lawyers to prove it. Small businesses and landlords have no such resources and have to ensure their lack of bias with carefully crafted standards and policies.