Does the legal principle of disparate impact apply to advertising?

Yes. Disparate impact is the legal principle that looks to the effect of a policy or practice and not to the intent of the policy or practice. Under the principle it does not matter if you didn’t intend to discriminate; it only looks to see if the end effect was discrimination. Therefore, you should be cognizant of the effects of your target marketing.

In 2016, HUD issued a statement it would look into the ability of real estate agents to select only certain races to receive marketing of their listing through Facebook. The potential effect of Facebook’s marketing tool might be placing agents in a compromising situation.

HUD has not issued any further guidance at this time.

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