
How Airbnb Makes It Hard to Sue for Discrimination - NN88
http://www.newyorker.com/business/currency/how-airbnb-makes-it-hard-to-sue-for-discrimination
======
dahdum
'On Wednesday, when I e-mailed Papas about criticism of arbitration, he
replied, “Our policies are similar to most companies and we’ve found that
arbitration is an effective way to resolve many issues.” Then Papas made
another striking point: that “guests also retain the ability to take action
against hosts.” In other words, Airbnb’s customers can sue homeowners for
discrimination, even while they’re barred from suing Airbnb itself.'

Surprised by that encouragement from Airbnb, this a scary prospect for
homeowners using the platform. Even untrue allegations would sink you in legal
costs, with Airbnb washing their hands of all of it.

~~~
dudul
Agreed. I actually don't even understand what ground a discriminated guest
would have. A host is not a business, as far as I know everybody can decide
who enters their house. That being said I'm not a lawyer.

~~~
eropple
In the United States, if you're using your property to derive revenues, you
are almost certainly a "business" by the legal definitions of the term that'd
put you under the purview of the Civil Rights Act of 1964.

~~~
toomuchtodo
Discrimination is permitted if you're not renting your entire home.

Key takeaway: "Who you bring in to your private home is a very personal
decision that the state has no business regulating. This is the part of the
opinion that convinced me."

[https://blog.splitwise.com/2012/02/07/court-allows-
discrimin...](https://blog.splitwise.com/2012/02/07/court-allows-
discrimination-in-roommate-selection/)

The court opinion:
[http://cdn.ca9.uscourts.gov/datastore/opinions/2012/02/02/09...](http://cdn.ca9.uscourts.gov/datastore/opinions/2012/02/02/09-55272.pdf)

~~~
gertef
And your private home is a very personal place that has no _business_
involving in regulatable commerce.

Is your house a "private" house or a public hotel? AirBnBers want it both
ways.

I spend more time at my office than at home, why is my home more personal?

~~~
toomuchtodo
This may be how you feel, which I can appreciate. I'm simply pointing out that
case law has been established that its allowed. If you have a roommate in your
home, AirBnB or not, the law lets you discriminate.

------
imroot
AirBNB is interesting.

Before I even stayed at an AirBnB, I paid for a AirBnB, and then was kicked
off of their system, because after they "searched public records," they
discovered that they didn't want me as a customer.

Interestingly enough, at the time I was a contractor for a three-letter
agency, so my background was pretty-damn clean.

They didn't follow FDCPA, no adverse notice telling me what their "source" of
information was (so that I could correct it), and no appeal. It took me
another week to get my $$ back from AirBnB.

The irony of this is that they still send me emails telling me of terms of
service and marketing emails, even after telling me that they don't want me as
a customer.

Oh well.

~~~
ninv
AirBNB can easily fix this issue by disallowing the hosts to reject the
booking request if place is available. If host rejects the booking request,
AirBNB can block them from renting out to other people for that time period.
They can run analytics and find out who is rejecting to black sounding names
and renting out afterward.

What are they doing?

~~~
curun1r
That won't work. The ability to discriminate is a big selling point to hosts.
And there's nothing wrong with certain forms of discrimination. Hosts have
limited recourse to deal with bad guests. My parents rent out a spare building
on their property and they're very conscientious about reviewing each guest.
When a guest leaves too large of a mess, they get lower than 5 stars. And
since their property is rented most nights, they refuse to rent to guests that
have more than a few negative reviews. Since people are renting out their
homes, this type of discrimination is necessary to make them feel comfortable.

Where discrimination becomes wrong is when it's based off race or some other
protected class. I've said it before, but the way to fix this isn't to deny
hosts the ability to discriminate at all, but to withhold the information that
hosts need to discriminate unfairly until after the booking has been made. If
a host is forced to choose to accept or deny a booking without seeing a
picture or knowing the name of the guest and only being able to look at
reviews, time on AirBnb and such, then you retain the ability to discriminate
against people who have a history of being bad guests without giving hosts the
ability to use race or some other unfair characteristic of the guest to
determine whether to accept the booking.

But, as others have mentioned in response, AirBnB wants to give the appearance
that it cares about unfair discrimination without actually dealing with it.
Too many of its hosts want to discriminate in that fashion. AirBnB will do the
minimum necessary to address the bad PR and do whatever it can to make it seem
like they care about those guests affected, but really doesn't want to do
anything about the issue.

~~~
wfunction
> Where discrimination becomes wrong is when it's based off race or some other
> protected class.

Really now?

If a 50-year-old doesn't want to live with a 20-year-old, that's wrong to you?

If a theist doesn't want to live with an atheist, that's wrong to you?

If a woman doesn't want to live with a man (or woman for that matter), that's
wrong to you?

If an Israeli doesn't want to live with a Palestinian, that's wrong to you?

If a pacifist doesn't want to live with a veteran, that's wrong to you?

If an American Indian doesn't want to live with a British, that's wrong to
you?

You think people who want to rent out a mere room or two of their home should
be _forced_ to disregard the "protected class" of the tenant? That genuinely
makes sense to you?

Like seriously... discrimination is not black and white. It shows complete
ignorance when you say discrimination based on a protected class is somehow
automatically wrong. The context (in this case, whether you're living with
them) matters -- a _lot_.

~~~
curun1r
> You think people who want to rent out a mere room or two of their home

No, I don't. I think the majority of AirBnB rentals are the whole
apartment/home, and it would be very simple to apply the rules I mentioned to
just that type of listing. In NYC, where I'd imagine the percentage of
shared/private rooms would be higher than other areas, 2/3 of rentals [1] are
of the entire home variety. Discrimination based on protected classes is wrong
in these instances. It's illegal for a landlord and it's illegal for a
hotelier. Why shouldn't it be illegal for a short-term rental just because it
uses the same platform that others use to rent out a room in their home?

So, does your diatribe still apply in the majority case or were you just
talking about those less frequent rentals?

> It shows complete ignorance when you say discrimination based on a protected
> class is somehow automatically wrong.

And it shows complete ignorance on your part that you ignore the circumstances
that constitute the majority of AirBnB rentals.

[1] [https://skift.com/2014/02/13/airbnb-in-nyc-the-real-
numbers-...](https://skift.com/2014/02/13/airbnb-in-nyc-the-real-numbers-
behind-the-sharing-story/)

------
ars
What a bizarre article. It has nothing to do with Airbnb, and everything to do
with arbitration.

If your interest is Airbnb or discrimination then skip this article.

Try buying a car without agreeing to arbitration - you can't.

It's a problem. But Airbnb is not the right company to use to talk about it.

~~~
andrewprock
AirBnB is the perfect company to use to talk about it. In general, racial
discrimination in rentals is a historic problem. If AirBnB wants to be the
platform for "rentals of the future" they are going to have to be responsible
for the degree to which they enable discrimination.

~~~
ryuker16
It's a one to one transaction and very hard to prove.

Race isnt specified and many user profiles obscure the face. Instabook books
automatically without host approval.

~~~
st3v3r
And then after the host finds out who it is, magically that date is
"unavailable".

~~~
ryuker16
You get dinged HARD for canceling as a host.

------
spraak
I always wonder how to handle this. I myself was recently rejected for an
Airbnb listing and while I felt angry and wanted revenge, I also felt glad
that I didn't accidentally stay with someone that wouldn't like/hated me.

~~~
ryuker16
There are alot of reasons I turn people down on airbnb. Usually related to
money.

~~~
spraak
I understand it can be for more than race, but what do you mean by money?

~~~
ryuker16
Other things include asking if you can smoke malboro reds inside my place or
trying to cram 6 people into my place or just being creepy or weird with your
request or trying to haggle on price.

From talking to other host, appearing like your there to party(live 20 minutes
away, under 25, bring a huge group for party) is a giant red flag.

Race is pretty far down the list of 'don't accept'.

Honestly, I haven't seen any sketch people on airbnb yet...broke sketch people
tend to view it with the same suspicion others view them('won't you be
robbed!!!' ).

Women are the biggest pita since they tend to grade harder or their men folk
show up to cause issues in my life as a host or they're friends arent cool
with airbnb then freak out to find a male stranger lives in the place.

Women bringing guys or alone are pretty chill.... Groups are nightmares.

------
hprotagonist
Arbitration clauses are pretty egregious.

Should it come to a real court, though, I imagine AirBnB would say something
like "we're basically a common carrier, so we're not on the hook, and you
can't compel people to house everybody in their own domicile, so even if they
are racists there's nothing you can do about it". Rather like Uber trying to
have their cake and eat it too.

~~~
icebraining
Should newspapers also be held liable if the owners of the houses being
advertised on classified ads discriminated?

Uber is a service that abstracts the drivers. AirBnB is a marketplace where
the seller is clearly identified, sets their own prices and policies, has
their own reputation, etc. They are very much not alike.

(This is not a endorsement of their arbitration policies, mind you)

~~~
r00fus
Newspapers classifieds sections don't help set prices nor are they involved in
the transaction for rental/purchase (Airbnb takes a %).

I don't think they can claim common carrier if they're involved to this level,
can they?

~~~
icebraining
Legally, I have no idea, especially since AirBnB operates in many
jurisdictions.

But I don't see why giving price suggestions means they are suddenly
responsible for the policies of their users.

~~~
gertef
AirBnB mediates the whole transaction. Their business proposition is entirely
that they are the middle-layer between host and guest. In advertising, the
advertising medium has no involvement in the services being offered or
fulfilled.

~~~
icebraining
That's a fair point. On the other hand, should I be able to sue the travel
agency through which I bought my tickets if the airline company is found to be
discriminatory?

------
CptJamesCook
The laws are complex and varied, but it's typically legal to discriminate when
renting individual rooms. Entire houses are a different story, though.

------
serge2k
These mandatory arbitration clauses buried inside EULAs should be illegal.

~~~
ersii
What makes you forced to agree to them in the first place? If a service has a
terrible EULA - do not use it and do not accept their end user agreement.

(By the way, I'm basically telling you to "discriminate based on EULAs".)

~~~
serge2k
That's really not an acceptable solution. Especially in an age where "We can
alter this contract however we want, whenever we want" is apparently valid.

~~~
ersii
It's not valid, if you have not entered such an agreement. Hence my previous
comment.

~~~
serge2k
Well then we're pretty much left with the option of go live in the woods.

------
gwatch
Allowing to sue someone for discrimination for a service you are not owed in
the first place is another brain dead idea of leftists. Capitalism is color
blind. Someone else will offer the service if one discriminates.

~~~
wfo
That is literally the opposite of what has happened historically and is
exactly why we have e.g. civil rights laws. In a fantasy land where every tiny
decision any business makes which is non profit maximizing results in the
destruction of that business, sure. We won't have weekends, benefits, a
cordial employer/employee relationship, a living wage for anyone, or
discrimination. What a wonderful capitalist paradise. I hope you don't live in
a part of the world where racism is culturally common and businesses that
serve all races are discriminated AGAINST by the majority culture, because
those businesses would cease to exist as well.

Fortunately for all of us, the market is just not that efficient. Nobody is
ever punished by the market for discrimination, only by laws.

------
gwatch
Why should anyone be allowed to sue for discrimination when the service is not
owed in the first place?

------
SilasX
Kind of funny to see this in contrast to their rolling out the "Community
Commitment" ("you agree you won't discriminated based on ...") they recently
rolled out and required of users:

[https://news.ycombinator.com/item?id=12822833](https://news.ycombinator.com/item?id=12822833)

------
biocomputation
I think arbitration clauses are wrong. It's the ultimate __* off to your
customers and an utterly first class way to say that you don 't stand behind
your work.

------
ohazi
tldr: arbitration clauses

~~~
yason
To me it sounds weird that something like the right to sue would not be a
fundamental right similar to free speech but something you can legally give
up. It's even worse when combined with shrink-wrap agreements such as terms of
use which is kind of analogous to "by entering this establishment you agree to
the following terms of service".

~~~
nickff
The First Amendment only applies against the governments; if some non-
government person tells you to 'shut up', it is not a First Amendment issue.

