Emma Fusco

Spanning across nearly 34,000 cities and 191 countries, studies have shown that despite the diversity of users on Airbnb, discrimination against race and gender are a continuing issue.[1]  Airbnb, the short-term rental site, has come across issues regarding discrimination by hosts.  A class action suit has been brought after chief plaintiff Gregory Selden, was denied service solely because of his race.[2]  To support his claim, a working paper by Harvard University has found it to be harder for users with African-American sounding names to rent rooms through the website versus users with more Caucasian sounding names.[3]

Airbnb’s plan of action to stomp out this discrimination is quite disheartening in our country’s time of racial reform.  The answer to this seems simple: take down photos of users and make names anonymous.  Airbnb’s answer? Taking away photos and making users anonymous resists the buildup of trust between the host and the renter, thus further heightening the anxiety of letting a stranger stay in his or her home.[4]  In order to be proactive on this issue, Airbnb has permanently banned those who violated the anti-discrimination policy, two hosts of which were removed for writing racist epithets to the user and another for refusing to let a transgender user rent.[5]

Although these actions help promote the anti-discrimination policy currently enacted by the online rental service, the company is taking this issue further from a technological standpoint.  The company is currently “examining its internal structures and technology, and its processes for identifying and handling discrimination incidents.”[6]  But what legal implications follow?

The legal issue here is very similar to the issues surrounding other businesses in the “sharing economy”.[7]  Are these private persons who are acting through a public service be considered public or private? If this service is determined to be a private service, does that give hosts the lawful option to freely discriminate or are hosts bound by other implications within the user contract?

There has been little development published by Airbnb regarding this issue and how the company plans to resolve it.

 

[1] Katie Benner, Airbnb Adopts Rules to Fight Discrimination by Its Hosts, N.Y. Times, Sept. 9, 2016, at A1.

[2] Katie Benner, Airbnb Vows to Fight Racism, but Its Users Can’t Sue to Prompt Fairness, N.Y. Times, June 20, 2016, at B1.

[3] Id.

[4] Mike McPhate, Discrimination by Airbnb Hosts Is Widespread, Report Says, The New York Times, http://www.nytimes.com/2015/12/12/business/discrimination-by-airbnb-hosts-is-widespread-report-says.html.

[5] Benner, supra on Sept. 9, 2016.

[6] Benner, supra, on June 20, 2016.

[7] Id.