Posted on July 3, 2012

Flat Adverts That May Be Breaking the Law

Tom de Castella, BBC News, July 2, 2012

“To let” advertisements that specify a particular race or religion are visible in newsagents windows in many areas of London. But are they breaking the law?

Today overt racial discrimination is both illegal and socially unacceptable.

But it is now possible to find advertisements seeking tenants for rented accommodation which specify race, or other characteristics, in a way which some experts believe breaks the law.

Newsagents in different areas of London carry adverts saying:

  • “Double bedroom available… Asian only”
  • “Double room to let Gujarati (Indian) only”
  • Close to the station and bus stops (Filipino only)
  • “Professional single lady or Sri Lanka professional couple”
  • “House for rent… only Asian families”

And even on the Gumtree website you can find the occasional advert for flats in London and Birmingham specifying race.

The newsagents or online adverts are not common but they are easy to find in London in particular.

Most people understand that racial discrimination in jobs or education is both unacceptable and illegal. It’s a position reinforced by the 2010 Equality Act, covering England, Wales and Scotland, which defines race in terms of both ethnicity and nationality. The same applies to religion – “Christian only” or “Muslim only” are both unacceptable.

It is illegal to seek a Polish architect, for example. But an employer would be able to call for an architect who speaks Polish or is familiar with Polish culture.

In the same way, landlords who specify a certain race are breaking the law, legal experts say. In 2009 the BBC found that letting agents in Lincolnshire were excluding migrant workers at the request of landlords. It was covert discrimination and breached the Race Relations Act 1976.

But in London at least you can find adverts specifying race openly displayed. Examples were not immediately apparent in Glasgow, Cardiff, Leicester or Bradford.

They only represent a small proportion of flat ads but it’s hard to imagine even a single similar advert saying “whites only” not drawing complaints.

But when contacted by the BBC, advertisers were taken aback to hear they might be breaking the law. A woman who placed a “Filipino only” advert in a newsagent in Golders Green, north London, explains: “I’m sorry about that. All the people here are Filipino so we need Filipinos.”

An advertiser in Tooting, south London, seeking a “Muslim family” is disappointed that the law may not allow for religious preference. “We are Muslim and it’s a flatshare. What can I say? Everyone has his own preferences. OK?”

Diet is a commonly cited reason. The author of a “Gujarati (Indian) only” ad says: “I’m a vegetarian and I don’t like meat in the kitchen.”

An advertiser in Perry Barr, Birmingham, who put an ad on Gumtree for a “student room (Asian females only)” defends the wording: “We have done that because we are Asians and live in.”

A number of those contacted refused to discuss the wording of their adverts.

The Equality Act says: “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” But how this might apply to flat adverts is yet to be tested in court and there is disagreement over the application.

There are three different groups who typically place flat adverts – landlords or agents letting a property, live-in landlords letting part of their property and tenants looking for housemates.

Dr Nuno Ferreira, an expert in discrimination law at the University of Manchester, believes that all these groups are covered.

“It doesn’t make any difference if the landlord lives in the premises or not. This distinction will have a bearing on discrimination on other grounds, but not in relation to race or ethnicity.” The same applies to tenants looking for a housemate, he believes.

Chris Norris, head of policy at the National Landlords Association, is less sure. “It is not clear whether tenants who do the same are breaking the law or not, although such behaviour is discriminatory against other potential housemates,” he says. “Tenants looking for new housemates should focus on describing the house’s current occupants so that potential applicants can judge for themselves whether they would be a suitable fit or not.”

The Equality Act appears to support Ferreira’s view that everyone is covered. Explanatory notes published with the act say that section 33 “…makes it unlawful for a person who has the authority to dispose of premises (for example, by selling, letting or subletting a property) to discriminate against or victimise someone else in a number of ways including by offering the premises to them on less favourable terms; by not letting or selling the premises to them or by treating them less favourably.”

But housing law expert Daniel Fitzpatrick, associate solicitor at Hodge Jones & Allen, argues it’s “ambiguous”. In general, housing legislation does not include live-in landlords and tenants, so it depends whether the Equality Act goes further, he says.

The idea that the law should dictate how landlords advertise a property is a step too far for some people. “We’ve become too politically correct about these things,” says Anil Bhanot, managing trustee of the Hindu Council UK. “If people have choices let them.”

To demand “Indian only” is a mistake, he says, but there is nothing negative about expressing a preference.

“It could be people are looking for someone with whom they have more common interests. It’s not that they can’t live with an English person.”

There’s a danger these adverts could create anger and division, argues David Goodhart, director of think tank Demos.

“It would cause amazing outrage if it’s happening on any scale and not moved against very sharply. People would think there’s one law for the ethnic majority and one law for various ethnic minorities.”

A Gumtree spokesman says the site does not allow discriminatory adverts: “We have strict rules in place to ensure that ads meet the guidelines set out by the UK Equality and Human Rights Commission. The rules on race equality, gender equality and the Race Relations act are clearly advertised across the site, and specifically on the ‘Flatshare posting rules’ page. Any adverts found to be breaking these rules are removed.”

So is prosecution likely in the case of flat adverts specifying race?

An Equality and Human Rights Commission (EHRC) spokeswoman says it has written to lettings agents in the past to explain that “usually they cannot specify that a prospective tenant is British, Asian or otherwise.”

The commission says that discrimination in flat let adverts may go far wider than race alone. While adverts specifying ethnicity are not common, those that say “female only” or “male only” are widespread.

These also may now be against the law.

“Women-only ads may be against the law unless it can be objectively justified,” the EHRC says. “For example, it is usually justifiable for a domestic violence shelter to offer beds to only women or only men for their personal safety.”

The same principle applies to age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, religion, and sexual orientation.

So “gay flatmate wanted” may be equally illegal.

Not everything is off limits though. “Those characteristics do not include vegetarianism,” the spokeswoman explains.

There’s no getting away from the fact that people want to live with likeminded people. But can that be allowed to mean people of the same ethnicity or religion? And even if there was a crackdown on discriminatory ads, would people not just subtly choose the ethnic group they wanted anyway, perhaps using prompts and coded terms?

There’s a need for flexibility in how discrimination law is applied as some groups are more vulnerable than others, says Penny Anderson, author of the Renter Girl blog. “A landlord saying no to a Muslim woman is wrong. But I think a group of Muslim women turning down a white man is OK.”

Initially, Bhanot is in favour of everyone being able to state a preference over the nationality or race of their chosen tenant. So should this apply to people saying “white only”? “Yes, it’s got to be allowed.”

On reflection though, he believes this might cause minorities to complain of discrimination. “This is a tricky thing. So maybe no-one should say it,” he wonders aloud.

Goodhart argues that stating any racial preference on a public notice is unacceptable. “There are certain anti-discrimination absolutes. Colour-blind liberalism has got to cut both ways. Otherwise it’s a gift to those who feel totally disaffected by how multiculturalism is being managed.”

But people can simply get around the law by placing an advert on a site catering for their own group, be it students, Indians or feminists. They can put a notice up in a foreign language, thus excluding anyone who can’t read Hebrew, Bengali or Polish, for example. They can also simply wait for the responses and filter applicants.

It’s true, says Goodhart. “Hypocrisy is better than overt, public racial preference.”