Shut Out of Airbnb: A Proposal for Remedying Housing Discrimination in the Modern Sharing Economy

Abstract

Airbnb, the market leader in the housing segment of the sharing economy, boasts on its website that it seeks to facilitate a certain experience to potential guests – an experience in which each guest will be a part of “a trusted community marketplace” and will have the opportunity to “discover and book unique accommodations around the world.” This claim reflects both the promise of an enhanced experience and of the fostering of a strong sense of community and trust through direct engagement of its participants with one another. One can imagine that a person looking for a place to stay can sit down at a computer and peruse hundreds of properties that meets her needs; a person wishing to open his home to short-term renters can easily post a description of his property and manage bookings. Each party, using this new online platform can be assured that the platform administrators have verified identity and the host can be assured that payment will be collected. Both host and guest can enter this community, make new connections, have new experiences and complete their commercial exchange seamlessly. As Airbnb’s website touts, their “hosts create a sense of belonging” and their guests have the experience of “belong[ing] anywhere.” But, unfortunately, this promise of belonging and adventure is oftentimes not the reality experienced by minorities who seek to join this “trusted community marketplace.”Recent studies have concluded that both minority hosts and potential minority guests face discrimination from Airbnb users. Discrimination against minority hosts and guests is concerning for a number of reasons. Discrimination against hosts disadvantages them in their economic pursuits. For both hosts and guests, racial discrimination prevents them from being able to fully avail themselves of membership in the community of sharing participants. This paper, however, focuses solely on discrimination against guests because such discrimination runs afoul of anti-discrimination legislation, particularly Sections 1981 and 1982 of the Civil Rights Act of 1866, Title II of the Civil Rights Act of 1964 and the Fair Housing Act of 1968. This essay provides background information on the sharing economy, with a particular focus on Airbnb. It then examines the applicability of anti-discrimination law to sharing economy online platforms and the limitations imposed on discrimination claims by the Communications Decency Act (CDA). Finally, it argues that online lodging platforms, such as Airbnb, are “transactional intermediaries” that are similar in function to real estate brokers and agents. Airbnb, therefore, should be held to the same standards of accountability and liability as real estate brokers and agents. In so arguing, this essay urges Congress to amend the CDA and remove the protections afforded to online platforms that foster housing discrimination.