How Airbnb Makes It Hard to Sue for Discrimination | Hacker News Reader

How Airbnb Makes It Hard to Sue for Discrimination

newyorker.com

59 pointsNN8882 comments

'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.

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.

I think the question revolves around whether a host is a business. If you're a business, all sorts of rules apply that don't apply if you're not. Now here are people taking money in exchange for service, it might be hard to argue they aren't a business.

You are arguing against the legality of airbnb.

In places like Vancouver all hosts are soon going to be required to have business licenses posted on their AirBnB listings.

That's ridiculous. Government overreach. The government should leave people alone.

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.

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...

The court opinion: http://cdn.ca9.uscourts.gov/datastore/opinions/2012/02/02/09...

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?

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.

So people getting money from paying roomates, doing private lessons (personal training, music, etc), therapy, working remotely, etc have no business of doing so in their home too?

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

Says who?

That was an interesting read, about an area I'd never really considered before. I'm not sure if I'd accept Airbnb guest == roommate, but the overlap might be close enough that I could see the underlying court decision being at least partially applicable.

A host is absolutely a business. Anyone thinking this is just "sharing" has no idea what they're talking about.

Tell that to all the people deducting Airbnb expenses on their taxes.

The Fair Housing Act makes it illegal to refuse to sell or rent a dwelling to any person because of race, color, religion, sex, familial status, or national origin unless it is part of your own primary residence and has two or less units.

Airbnb is a platform. They can take steps to try to limit and root out discrimination, but it is the hosts themselves who are being discriminatory. Furthermore, hosts have voluntarily signed up to act as a small business owner/landlord. Thus, it seems fair for them to take on much of the legal burden for their individual actions in that role.

Would anyone downvoting me care to articulate why? I'm genuinely curious.

NYT was just a platform allowing people to advertise. They got done under Fair Housing Act because they allowed racist adverts and didn't do enough to stop racist adverts.

http://www.nytimes.com/1993/08/14/nyregion/times-adopts-a-ne...

> In the four-year court fight, The Times sought to dismiss the suit on First Amendment grounds, arguing that the ads were created by advertisers and that the newspaper "merely published the advertisements as submitted."

> But Federal courts ruled against the newspaper, saying that there would be no infringement of press freedoms for a newspaper to refuse advertisements that would, as the decision of the United States Court of Appeals for the Second Circuit put it, "to the ordinary reader indicate a racial preference." The United States Supreme Court refused to review the case in 1991.

There's similar legal prospect all over, if you look for it.

For example, in Texas, homeowners within an HOA can file suit against one another using the rules of the bylaws for cause. Even if/after the HOA decides not to [or stops] pursue action for some violation/infraction.

Edit: fixed a typo

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.

Are you black? Do you suspect racism?

I'm a black airbnb host.... That platform is pretty easy to avoid Racism via Instabook.

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?

That starts getting into an interesting combination of laws..

A - While some stores say "we reserve the right to refuse service," that's been pretty soundly defeated in a number of lawsuits, part of which sparked the various "religious freedom" bills.

B - Alternatively, you can deny anyone access to your home for any reason. Just because a [black, white, gay, any religion] person knocks on your door, doesn't mean you have to let them in.

So when you rent your home via AirBnb, do you have the rights & responsibilities of a homeowner or of a business? Is there a threshold where it switches?

The problem, I suppose, is that having the ability to choose who stays in your house is a big selling point. If someone requests our spare room, but they have many other hosts giving them bad reviews, we will reject them.

We make most of our AirBnB revenue on big events, a weekend or two a month. If we kept losing those weekends because the first person to apply was someone we didn't want to share the apartment with, that'd make it pretty pointless for us to use the platform.

That'd also be a valuable-ish service - have someone with bad reviews apply very early to competitor's places during big events, for the sole purpose of getting denied and preventing actual costumers from renting from places that aren't yours.

It would only be valuable while unknown, as soon as it was known by a large enough crowd it would cause a viral reaction blowing out all availability for some big event.

Denying pre approval is easy and no damage to your rep.

AirBNB can block them from renting out to other people for that time period

Then this opens up a competitive hole where another, similar service will let you rent on their platform during that same period. Hosts will just use multiple services (if they don't already), just like drivers for Uber and Lyft do.

In other words, this wouldn't actually solve any discrimination issues, but it does keep it hidden and off AirBNB.

Requiring apartment owners to use multiple services increases the cost of discrimination, which will in turn reduce it.

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.

> 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.

> 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-...

I think that, if you "don't want" to associate with people in whatever group for whatever reason, that's okay -- what you want to do is your private business.

But none of this is about what you don't want to do. It's about how you treat other people, commercially and otherwise. Society should not permit a man to refuse to do business with a woman and vice versa.

You can discriminate against people for being young. :)

https://www.eeoc.gov/laws/types/age.cfm

Black sounding names? What does that even mean? Do other people not discriminated against? Fat people, ugly people, people with kids, etc..

We often reject becuase of schedule conflicts or becuase think the guests are renting solely to party.

Instead the site heavily pushes you toward Instabook which is automatic book with zero host input.

Black sounding names? I'm, your average airbnb is pretty wealthy.... You dont get white trash nor ghetto names as much in general.

Airbnb or the host told you that?

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.

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

Why?

Because you'll get lost in a whole discussion of discrimination, if it's Airbnb's responsibility to prevent, if homeowners have the right to discriminate. If Airbnb is even legal, etc, etc, etc.

(For example look at some of the comments in this thread that are talking about discrimination, when the topic is ostensibly arbitration. It should be two separate discussions.)

Either talk about it in a Vacuum (without any particular company), or at least pick a case that is more "pure", i.e. unequivocally the company's responsibility.

It seems like the two topics are correctly being linked. Airbnb is trying to use arbitration clauses to avoid having to answer any questions about large-scale discrimination. Why should it be talked about in a vacuum?

Because you can solve (try to solve) the discrimination issue without ever touching the arbitration issue. But the problem at hand (specifically the problem in the article) is arbitration.

Mixing two topics, and then solving the wrong one is a very common and effective debate and political tactic.

> without ever touching the arbitration issue

It's a strange world where Air B&B can use arbitration to shield themselves and then when this tactic is pointed out people say "no you can't talk about that, it muddies the waters". The arbitration is absolutely relevant.

The author highlights why Airbnb is the right company to use to talk about it.

> Often arbitration clauses are invoked in cases where consumers feel they have been financially slighted—seeing charges on their phone bills for services they never wanted, for instance—but the Times investigation found arbitrations used in more serious cases of medical malpractice, theft, hate crimes, and discrimination. The Airbnb situation highlights how far the practice extends.

Other companies (like car dealers) have used arbitration for smaller scoped purposes, but Airbnb is essentially opting out of the 14th amendment.

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.

> 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.

You realize the "it" in your sentence is "arbitration", while the rest of what you wrote is about "discrimination"?

Your sentence is a perfect example of why Airbnb is exactly the wrong company to use to talk about arbitration.

(This article is about arbitration. I'm not implying people shouldn't talk about discrimination, just that the headline is quite misleading.)

It may not have been clear in what I wrote above, but arbitration relates to systematic violations precisely because arbitration prevents pursuing class action suits. It is in that regard that AirBnB is relevant.

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.

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

You get dinged HARD for canceling as a host.

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

I did. I refused to sign the arbitration agreement said I was walking out. They didn't like it but didn't like losing a sale even more.

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.

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

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

Events allow me to jack up the prices. Sometimes a bunch people request a date far in advance and I find out some giant events scheduled for 6 days but you want two and every hotel is sold out.

Yep....your gonna get bounced followed by immediate price hike

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.

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.

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)

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?

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.

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.

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?

You see, if the putative discriminees were to go after the discriminators, it would likely result in a relatively small-money settlement. Much better to assert some bizarre form of group responsibility, to up the chances of a big score.

In other words, greed. That's all it is

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

These mandatory arbitration clauses buried inside EULAs should be illegal.

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".)

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.

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

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

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.

As I understand it, one theory of market capitalism is that value equals perceived value. If this is the case, then capitalism is only color blind if perception is color blind.

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.

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

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

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.

tldr: arbitration clauses

or how many (and most "mega") companies make it hard to sue for anything.

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".

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.

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