Comment on Racial Discrimination Lawsuit Against Airbnb Has the Potential to Change Online Marketplaces–Harrington v. Airbnb by David S. Gingras

Eric — keep something in mind: ever since the 9th Circuit’s 2008 decision in Roommates, I have always argued that the defense strategy in that case (with all due respect to the great Tim Alger) was wrong. In Roommates, the website defendant raised the CDA BEFORE the legal parameters of the plaintiff’s claims were tested. That was a tactical mistake (albeit a completely understandable one). By raising the CDA too early, that allowed the 9th Circuit to make certain assumptions about the merits of the plaintiff’s claims that were completely incorrect (i.e., the court assumed that the Fair Housing Act applied at all, which it later determined was wrong). Then, based on that false assumption, the 9th Circuit proceeded to speculate that the CDA would not apply to certain parts of the case.

But that entire analysis in Roommates was flawed because the CDA shouldn’t have been raised as a defense unless and until the court first evaluated the scope of the plaintiff’s Fair Housing Act claims (which it later did in 2012). If approached that way (look at legal merits first, then consider defenses second only if necessary), the Ninth Circuit never would have concluded that the CDA didn’t apply to certain parts of the case. That’s so because the court would have held (as it later did in 2012), that the FHA simply didn’t apply to that situation at all, thus any defenses were simply irrelevant.

What I am saying is simply this — although I haven’t pulled the MTD to see what arguments Airbnb did or didn’t make, I think the approach here is correct — it makes much more sense to flesh out the legal merits of the plaintiff’s claims FIRST, and then once that’s done, start talking about other issues such as how the CDA affects the remaining claims. That is exactly what I have argued should have been done in Roommates.

Seen that way, I don’t think this ruling is as bad as you have suggested….it merely reflects some preliminary observations about the extent to which Oregon law may apply here, but unless and until the court says that Airbnb is liable for the unlawful conduct of 3rd parties (which this ruling does NOT actually say), then I am not too terribly worried. We will get to those issues soon, but not today.

Also, FWIW — something else about this case doesn’t sit right with me; i.e., the idea that a discriminatory intent could be found just because the party who is providing accommodations (i.e., the property owner and/or Airbnb) is able to see a photograph of the potential renter/guest’s face? Seriously? How is that any different from any person walking into a hotel lobby and asking if they have any rooms available? In that case, the front desk clerk would clearly be able to see the race of the potential guest; does that automatically mean the hotel is subject to liability if the hotel happens to have no vacancy that day (because of course the clerk was lying solely due to the guest’s race)? That just can’t be how this works.

Finally, just like the Ninth Circuit noted in the 2012 version of Roommates (wherein the court realized that — oops! — the Fair Housing Act does not apply at all to a person seeking to rent their property to a potential roommate), the idea that a property owner should be required to allow ANYONE to access their home/apartment doesn’t “feel” right to me. This is not like a McDonald’s restaurant putting up a sign that says: “We Don’t Serve People of Color”. It’s just tangibly different due to the far more personal nature of having someone else (who is, by definition, a complete stranger) come into your home.

I concede I have never used Airbnb (the whole idea seems creepy to me), but when you are talking about allowing strangers into your home, I would think the property owner should be allowed complete discretion to deny access to anyone for any reason, just as the Ninth Circuit said was permissible in the roommate-sharing context.

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