Editor’s Note: Norrinda Brown Hayat is the Director of the Housing & Consumer Law Clinic at the University of the District of Columbia’s David A. Clarke School of Law. The opinions expressed in this commentary are hers.
Last week, Airbnb released its new anti-discrimination policies
Norrinda Brown Hayat: Despite these new policies, Airbnb cannot fully prevent racists from using and abusing its platform
I would like to live in a world where Airbnb exists. When traveling, my family of four has outgrown 160 sq. ft. hotel rooms. My husband and I like being able to wake up in the morning and make our kids pancakes or toast a bagel, instead of having to rush downstairs to a pricey hotel restaurant or, even worse, order astronomically priced room service.
We like to stretch out and have a backyard for the kids to play in on vacation, or as Airbnb likes to put it “live there.” I get Airbnb. I enjoy it.
But I also know what it is like to spend too much of the work day trying to get an Airbnb host to accept you, crafting just the right summary of why you are visiting the area – dropping subtle (or not so subtle) references to graduating from an Ivy League college, being a professor, a lawyer, living in a suburban neighborhood, having small children who attend Montessori school – trying to appear “not too black” to rent to.
And I know what it is like to revisit the listing page of a host who has told you his place is booked only to find it is still available.
It’s exhausting. It’s embarrassing. It’s degrading.
I want Airbnb to exist only if the company can fix the pervasive discrimination that is infecting its platform. But I am not entirely sure that is feasible.
Last week, in a 32-page report that acknowledged the ways in which hosts have used its platform to discriminate against African-American would-be guests, Airbnb released its new anti-discrimination policies.
Among other actions, Airbnb’s plans to address discrimination on its site include developing a feature to help prevent hosts from rejecting one guest by alleging that their space is unavailable and then renting to another, by automatically blocking the calendar for subsequent reservation requests for that same trip. Airbnb also indicated that it would work with a team of engineers and designers to experiment with reducing the prominence of guest photos in the booking process.
Airbnb made these changes in response to overwhelming evidence that African Americans have a more challenging time using the platform than whites. A much-reported-on 2016 study conducted by professors at Harvard Business School revealed “that requests from guests with distinctively African-American names are roughly 16% less likely to be accepted than identical guests with distinctively White names,” and anecdotal reports from black potential guests confirm the study’s results.
In May 2016, the Twittersphere lit up with #Airbnbwhileblack stories as would-be guests expressed frustration over their inability to book units using the platform.
On May 17, Selden v. Airbnb, Inc., the first lawsuit accusing Airbnb of racial discrimination, was filed. It alleged that an Airbnb host rejected the plaintiff’s initial application but subsequently accepted the same application when the plaintiff re-applied using profiles imitating white men. Airbnb’s public response to Selden was that the company prohibits content that promotes bigotry, racism, hatred or harassment, which was a different point than whether Airbnb has structured its platform in a way that allows implicit and explicit discrimination to persist.
Some of the changes announced last week – especially blocking hosts from booking once they have declined a person for those dates – if implemented properly, could help transform the process of renting on Airbnb for blacks.
But not entirely.
If the past is any portent, discriminators find a way. That’s not Airbnb’s fault – the problem is racism. But if we are honest with ourselves, no matter how much we want a world with Airbnb in it, this raft of changes is not enough if we also want a world that allows our black friends, coworkers and family members to have dignity when they travel.
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It’s important to note that Airbnb has more listings now than Marriott, the largest hotel chain in the world, and that number is rising. This is the “public accommodation” of the future. Regardless of Airbnb’s intentions, we cannot allow a business model – one that has overtaken the hotel industry – to persist while rife with discrimination. It might seem easier to let the private market regulate itself, but Airbnb has proven unable to do so here.
Luckily, we have laws that are designed to protect us in the arena, including Title II of the Civil Rights Act.
Some commentators are suggesting a “soft spot” in our discrimination laws makes Airbnb and the hosts exempt from U.S. public accommodation law. Relying on the “Mrs. Murphy Boarding House” exception to Title II, which exempts owner-occupied housing accommodations with five rooms or less under a theory that a person renting close quarters has a right to free association with only people he or she prefers to live with, these commentators argue that Airbnb listings are not covered. Yet, despite Airbnb’s “mom and pop” marketing campaign, thousands of Airbnb’s listings are posted by “commercial hosts” who do not fall under the Mrs. Murphy exception.
In 2014, for example, a review of Airbnb’s global listings revealed that 40% of the company’s business came from hosts offering more than one listing.
These were not people renting out rooms in their private homes for a few nights a year. Instead, these were “commercial hosts,” or people who were making a business of renting multiple units on Airbnb.
In New York City, one of Airbnb’s most profitable locations, based on data gathered in 2015 for a study commissioned (according to the New York Times) by affordable housing advocates critical of Airbnb, “more than 55 percent of Airbnb listings (28,765 unique units) allowed the booking of an Entire Apartment/Home.”
Simply put, Airbnb’s business model is built on “commercial use, regardless of whether it is one host that permanently rents multiple homes, or many hosts that permanently rent one entire home.” By definition, neither group of hosts are “Mrs. Murphys,” and both are subject to discrimination laws controlling public accommodations.
Moreover, black travelers also have a right worth protecting – to be free from discrimination. And if Airbnb cannot provide a platform for that, we need to use public accommodation laws to stop hosts from discriminating – or we would all be better off in a world without it. Marriotts may not be as fashionable or as comfortable, but at least we all have equal access to them.