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

May 26th, 2016

By Jamila Jefferson-Jones*
Introduction

Airbnb_LogoThe modern sharing economy[1] is a diverse marketplace made up of various types of organizations and structures, including shared housing.[2]  What ties these various components together is that they “generally facilitate community ownership, localized production, sharing, cooperation, [and] small scale enterprise.”[3]  The housing segment of the sharing economy is also a part of what has been termed the “experience economy.”[4]   Within the experience economy, “the crucial role of experiences [is] understood as (positive) emotions, values and identities in value creation.”[5]  Thus, in theory, the housing segment of the sharing economy combines both the community and trust elements of “sharing” and the freedom and adventure of the “experience.”

Airbnb, the market leader in the housing segment of the sharing economy,[6] 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.”[7] 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.[8]  As one scholar noted in his examination of Airbnb, it “simultaneously allows for commercial exchange, for human relations between hosts and guests and for contributing to a potentially great experience.”[9] Or, as a recent report on the sharing economy stated:

Today, the value of a [sharing economy] brand is often linked to the social connections it fosters. . . .   By providing consumers with ease of use and confidence in decision-making, a [sharing economy] company moves beyond a purely transaction-based relationship to become a platform for an experience – one that feels more like friendship.[10]

Unfortunately, the Airbnb experience is not uniformly positive among racial groups. For instance, recent studies have concluded that both minority hosts and potential minority guests face discrimination from Airbnb users.[11]  For example, one study of New York City Airbnb listings found that, even when controlling for neighborhood and rental unit quality, African-American hosts receive 12% less in rental income than non-African-American hosts.[12]  Similarly, another study found that across major metropolitan areas, potential African-American Airbnb guests were 16% less likely to be successful in securing accommodations than whites.[13]

Discrimination against minority hosts and guests is concerning for a number of reasons. Discrimination against hosts disadvantages them in their economic pursuits.[14] 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 focuses on discrimination against guests because it 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 proceeds in four parts: Part I examines Airbnb as a second-generation only sharing economy platform and discusses how that status effects the lodging booking process.  Part II examines the applicability of anti-discrimination law to sharing economy online platforms.  Part III, however, discusses the limitations imposed on discrimination claims by the Communications Decency Act (CDA).  Finally, Part IV argues that online lodging platforms, such as Airbnb, are “transactional intermediaries” that are similar in function to real estate brokers and agents and, therefore, should be held to the same standards of accountability and liability for discrimination.  In doing so, this essay urges Congress to amend the CDA and remove the protections afforded to online platforms that foster housing discrimination.

I. Airbnb: A Second-Generation Online Sharing Economy Platform

Platforms such as Airbnb are second-generation online sharing economy platforms.[17]  Unlike first-generation platforms, via which “a seller agrees to do business with a given buyer before learning the name or identity of the buyer,” second generation platforms allow one to reject a potential buyer based on that buyer’s personal information.[18]  For example, Airbnb hosts list their properties’ location, size, and availability as rentals.  They also provide personal information, including where they are from, how long they have owned the property or lived in the area, and any expert knowledge they possess about that particular area that might enhance the guest’s experience.[19]  Hosts even discuss their hobbies in their listings.[20]  Most hosts also provide profile pictures of themselves.[21]

Prospective guests contact the hosts of the properties in which they are interested to inquire about booking a stay.[22]  At this point in the process, hosts are only provided with the prospective guest’s first name and profile picture.[23] On the booking request form, the prospective guest has the option of also providing the host with information on why she will be visiting the area.[24]  The profile pictures of prospective guests are supplied from their other verified social media accounts, such as Facebook or LinkedIn.[25]  After receiving an inquiry, a host can review the prospective guest’s profile and decided whether to accept or reject the guest.[26]  As one commentator noted, this booking process sets up the opportunity for “a near paradigmatic violation” of anti-discrimination laws.[27]

II. The Applicability of Anti-Discrimination Law to Protect Prospective Sharing Economy Guests

This part seeks to determine whether existing anti-discrimination laws can be employed

to protect prospective sharing economy guests from housing discrimination.  It begins with an examination of Sections 1981 and 1982 of the Civil Rights Act of 1866; proceeds with an examination of Title II of the Civil Rights Act of 1964; and finally concludes with a discussion of the Fair Housing Act, which is examined both in terms of its applicability to individual hosts and to actual online platform owners such as Airbnb.

      A. Sections 1981 and 1982 of the Civil Rights Act of 1866

Section 1981 of the Civil Rights Act of 1866 provides that “All persons. . . shall have the same right. . . to make and enforce contracts and to the full and equal benefit of all laws and protections for the security of persons and property as is enjoyed by white citizens.”[28]  Section 1982 prohibits racial discrimination in real estate transactions, including rental transactions.[29]  Both sections apply to all racial discrimination in contracting and the sale or rental of property – whether such discrimination is by public or private actors.[30]

Taken together, Sections 1981 and 1982 appear to show promise as mechanisms for remedying race-based housing discrimination on sharing economy online platforms.[31]  There is, however, a significant challenge involved in bringing a sharing economy housing discrimination claim under Sections 1981 and 1982.   In particular, there is the matter of the requisite standard of proof for a claim of discrimination under these sections.

In order to prevail, the plaintiff in a Section 1981 or Section 1982 claim must demonstrate the defendant’s intent to discriminate.[32]  Thus, absent an overt statement of intent (such as “I do not rent to non-whites”), proving intent is difficult, if not impossible, for a prospective guest who has been denied lodging by a host.  It is far too easy for a host to provide non-discriminatory justifications for the denial: timing or other hosts’ reviews of the prospective guest (or lack of reviews) could be cited.  Moreover, given the large volume of online short-term rental transactions and the broad geographic scope of the listings, experts have concluded that using paired housing testers[33] to uncover discriminatory intent is not practical.[34]  Sections 1981 and 1982 provide a compelling policy reason to apply them to instances of housing discrimination facilitated by online platforms, as both sections seek to ensure “participat[ion] in public life regardless of race.”[35] Despite the underlying policy supporting Sections 1981 and 1982, given the potential challenges of establishing a claim of online housing discrimination under both sections, it is necessary to examine how other anti-discrimination laws  — such as Title II of the Civil Rights Act of 1964 and the Fair Housing Act, however, may better support a claim of discrimination.

    B. Title II of the Civil Rights Act of 1964

Title II of the Civil Rights Act of 1964 prohibits racial discrimination in “establishment[s] which provide lodging to transient guests.”[36]  A number of Airbnb-type bookings may, however, be exempt from compliance with Title II.  Section 2000a(b) of Title II exempts rental units in “establishment[s] located within a building which contains not more than five rooms for rent or hire and which is actually occupied by the provider of such establishment as his residence.”[37]

Certain Airbnb lodgings may be exempt from coverage under Title II.  Airbnb hosts may offer three different categories of accommodations: (1) the entire home with the host not present in the rental unit; (2) a private room with common areas shared with the host or other guests; or (3) a room shared with the host or other guests.[38]  The first category – the entire home – at first blush may seem to be covered under Title II because the host is not present in the unit.  However, there is some ambiguity around whether a host who rents her home on a short-term basis with the intent to return and continue residing in that home is exempt.[39]  Does “actually occupied” mean during the rental term?  Surely that is what was envisioned at the time that Title II was enacted.[40]  But, that was long before the advent of online platforms like Airbnb.  The exemption was meant to protect the rights of freedom of association of the prototypical homeowner who “took in” boarders or lodgers in order to earn extra income.[41]

Airbnb’s second and third categories of accommodations would appear to be exempt if the host (rather than other guests) is present during the guest’s stay.  However, if the host is not present, then the same ambiguity clouds the statute’s application with regard to the term “actually occupied” as faced by those offering lodgings in the first category.

Courts are divided on the question of whether Title II claims require a showing of discriminatory intent, or if a showing of disparate impact is sufficient.[42]  In jurisdictions requiring proof of discriminatory intent, a rejected guest would face the same obstacles as one bringing her claim under Sections 1981 and 1982.[43]  However, where the necessary standard of proof is disparate impact, the recent study showing the disproportionate rejection rate of African-American guests could help to establish such evidence.  This same study could serve as evidence of disparate impact for a claim brought under the Fair Housing Act.

    C. The Fair Housing Act

The application of the Fair Housing Act (FHA)[44] to instances of discrimination by Airbnb users offering lodging via online platforms can be analyzed with regard to its application to individual hosts as well as its application to the platforms themselves as “brokers” of real estate services under its provisions.

1. The Application of the Fair Housing Act to Individual Hosts 

The FHA could be applied to individual Airbnb hosts who discriminate against prospective guests.  Under Section 3604 of FHA, it is “unlawful [t]o refuse to negotiate for the rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, sex, familial status, or national origin.”[45]  However, just like Sections 1981 and 1982 of the Civil Rights Act of 1964, the FHA contains certain exemptions.  In particular, Section 3604 does not apply to “rooms or units in dwellings containing living quarters occupied or intended to be occupied by no more than four families living independent of each other, if the owner actually maintains and occupies one of such living quarters as his residence.”[46] 

Similar to the application of Sections 1981 and 1982, the same ambiguity regarding what constitutes “occupancy” affects the FHA’s applicability to Airbnb hosts.  In 2016, the New York Attorney General conducted a study of the composition of Airbnb bookings in New York City.[47]  The study points to the conclusion that, even if the FHA exemptions apply to nearly all hosts, they would not apply to nearly all reservations.  Only 6% of Airbnb hosts could be classified as “Commercial Users”[48] – that is, those who rented more than two unique units during the study’s review period.  Commercial User reservations, however, accounted for 36% of Airbnb reservations in New York City.[49]  In raw numbers, this means that of the nearly one-half million reservations booked during the study’s review period, approximately 177,000 were booked into units owned by Commercial Users who possibly would not be able to avail themselves of the FHA exemptions.[50]

The Commercial Users under The New York Attorney General’s study controlled anywhere from a minimum of three units to a maximum of 272 units.[51]  If more than four of these units were in the same dwelling, then the host would have run afoul of the FHA and a case of discrimination could be proved.  A Commercial User with three or four units in the same dwelling, who did not occupy one of the units, could also be subject to a claim of discrimination.

The FHA also holds more promise for relief from online host discrimination than Sections 1981 and 1982 and Title II.  The FHA does not require discriminatory intent to establish a prima facie case of discrimination.[52]  Rather, it is sufficient to provide proof of discriminatory impact or disparate treatment.[53]  Thus, studies showing such impact or treatment would be particularly relevant to a claim of discrimination under the FHA.

2. Airbnb as a “Broker” Under the Fair Housing Act

The FHA also provides that it is “unlawful for any person or other entity whose business includes engaging in residential real-estate transaction to discriminate against any person in making available such transactions . . . because of race, color, religion, sex, handicap, familial status, or national origin.”[54]  Brokering residential real property is a “residential real estate-related transaction” under the FHA.[55]  Although the FHA exempts owners of three or fewer single-family home rentals, it prohibits such owners from using real estate brokers or agents – or other persons “in the business of selling or renting dwellings” – to sell, rent or market properties in a discriminatory manner.[56]

Platforms such as Airbnb function in the same manner as brokers.  Online platforms like Airbnb function as “transactional intermediaries” in that they bring together the parties to a real estate transaction and facilitate the transaction itself.[57]  Like real estate brokers, housing segment sharing economy online platforms “perform the critical task of finding the parties for the [transaction]” – “parties [that] have never met and do not know each other until the [intermediary] brings them together.”[58]  Thus, Airbnb and similar platforms “broker” the short-term leasing transactions by facilitating host and guest introductions, information exchange, and remuneration.  If courts consider Airbnb as the functional equivalent of a real estate broker, then online platforms like Airbnb would be liable for the discriminatory acts of their users.

Recognition of online housing platforms as the functional equivalent of real estate brokers is just the first step toward protecting guests from discrimination.  There is also the matter of the Communications Decency Act (CDA),[59] which protects many online platform providers from liability from user-generated content.  It, therefore, may bar plaintiffs from asserting claims against online providers for their users’ violations of anti-discrimination laws.

III. The Applicability of the Communications Decency Act

Airbnb’s statement of “standards and expectations” provides that, to ensure “fairness,” its users “should follow all applicable laws and not treat others differently because of their race, ethnicity, national origin, religious affiliation, sexual orientation, sex, gender, gender identity, disability, or serious diseases.”[60]  Airbnb’s fairness standard is couched in permissive terms (“should”) rather than as a directive (“must”).  There is no stated consequence for Airbnb hosts who violate this standard.  One reason for this permissive tone and lack of consequences for hosts who discriminate is that Airbnb, and similar platforms, have no incentive to police a host’s compliance with anti-discrimination law.  Although some localities require online platforms to inform hosts of the applicable anti-discrimination laws governing short-term rentals, [61] sharing economy companies are, arguably, shielded from direct liability for their hosts’ discriminatory actions by Section 230 of the CDA.[62]  This shield disincentivizes Airbnb from addressing discrimination facilitated via its platform.[63]

In part, the CDA was enacted:

to promote the continued development of the Internet . . . [and] to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation, while also “ensur[ing] vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.[64]

Section 230 states that those providing “interactive computer services” shall not be “treated as the publisher or speaker of any information provided by another information content provider.”[65]  Federal courts have yet to decide whether the CDA does, in fact, shield sharing economy online platform providers from liability under anti-discrimination statutes.[66]  But there are two lines of thought that provide, under certain circumstances, it could.[67]

These two lines of thought are illustrated by Fair Housing Counsel of San Fernando Valley v. Roomates.com[68] and Chicago Lawyers’ Committee for Civil Rights v. Craigslist.[69]  In Roomates.com, the U.S. Court of Appeals for the Ninth Circuit held that an “information content provider” could not avail itself of CDA protections because the website required users to disclose personal information, such as sex, sexual orientation and familial status via pre-filled drop-down boxes.[70]  By contrast, the U.S. Court of Appeals of the Seventh Circuit found in Craigslist that the company was not liable under the FHA for users’ discriminatory posts because the website did not create content, but merely provided a forum for the posting of content that was purely user-generated.[71]

In both Roomates.com and Craigslist, the courts focused on the question of who generated the content provided on the websites in question – the site owner or its individual users.  Through this analysis, the CDA should apply to online platforms that serve as “transactional intermediaries” in the real estate transaction process even when hosts discriminate against prospective guests.

III. Airbnb and Other Sharing Economy Housing Platforms are Transactional Intermediaries: A Proposal to Amend the Communications Decency Act

Commentators have distinguished between “active developers” and “passive intermediaries” to bolster the argument that Airbnb is more akin to the online platform in Roomates.com than Craigslist.[72]  However, in the real estate context, the intermediary is, by its very nature, active in its facilitation of the transaction, rather than passive.[73]   For this reason, sharing economy online housing platforms should be held to the same standard as “old economy” real estate brokers and agents who are subject to the FHA.

As noted in Part II.C of this essay, the activities of real estate professionals are covered under the FHA.  This fact is reflected in the manner in which such professionals govern themselves in order to ensure compliance with the FHA.  For example, the profession has adopted ethics rules that prohibit discrimination.

Most of the country’s active real estate brokers belong to the National Association of Realtors (NAR),[74] the largest trade association in the United States.[75]  Each state’s real estate broker association and most local real estate boards belong to NAR.[76]  NAR’s Code of Ethics and Standards of Practice states that its members “shall not deny equal professional services to any person for reasons of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity,” nor shall they “be parties to any plan or agreement to discriminate against a person or persons on the basis of race, color, religion, sex, handicap, familial status, national origin, sexual orientation, or gender identity.”[77]  NAR, therefore, acknowledges its members’ “social responsibility” as real estate professionals and its policies mirror and expand upon the protections provided under the FHA.[78] The role that Airbnb and similar online sharing economy housing platforms play, coupled with the goals of inclusivity fostered by anti-discrimination laws such as the FHA, is why these new economy platforms should be treated by the law in the same manner as traditional real estate professionals.   By not expanding the FHA to online platforms, the state denies minorities access to property in the modern sharing economy.

The FHA’s exemptions, however, ensures that those who are engaged in small, personal real estate pursuits are not covered, while those engaged in larger scale business pursuits may be covered.  The sharing economy, however, blurs the distinction between “personal” and “commercial.”[79]  It is, therefore, difficult to hold individual hosts accountable for their own discriminatory actions under the FHA.  It is even more difficult to hold individual hosts accountable for discrimination that appears as inherent to the structure of the transactions on these platforms.  For this reason, Congress should enact an exemption to the CDA that would allow minority guests a private right of action against the discriminatory practices of online real estate businesses such as Airbnb.

The CDA already includes certain exceptions that are meant to resolve the tension between the CDA’s guiding policies and other important policies.  For instance, the CDA provides: “Nothing in this section shall be construed to limit or expand any law pertaining to intellectual property.”[80]  It thus leaves undisturbed laws aimed at protecting intellectual property rights.  Likewise, the language of the CDA explicitly states that its provisions to not supersede laws aimed at the eradication of online obscenity and child pornography:

Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute. [81]

Preventing housing discrimination is also a fundamental policy goal and, as such, online housing discrimination is ripe for inclusion as an exception under the CDA.

Conclusion

In an effort to keep pace with the changing market landscape of the sharing economy, state and local governments have sought to fashion responses to online-facilitated short-term rentals that fit the needs of their particular localities.  A similar effort must be made by the federal government to bring old economy anti-discrimination efforts in line with the new economy.  The number of online platforms designed to link property owners with potential short-term lessees has expanded rapidly over the last few years.  As the use of these sharing economy housing platforms has grown, government has found itself ill-equipped to regulate them. The Communications Decency Act (CDA) likely bars plaintiffs from asserting claims against online providers for their users’ violations of anti-discrimination laws.  Therefore, those who seek to procure accommodations via online platforms have no recourse when faced with discriminatory housing practices.  However, amending the CDA to strengthen possible claims under existing anti-discrimination laws could help regulators to keep pace with the new economy in a manner consistent with existing fair housing goals.

* Associate Professor of Law, University of Missouri Kansas City; member of the American Bar Association, Section on State and Local Government Law, Sharing Economy Committee; many thanks to my research assistant Stephanie Moore.

Sources:

[1] See Jenny Kassan & Janell Orsi, The Legal Landscape of the Sharing Economy, 27 J. Envtl. L. & Litig. 1, 2, 5 (2012) (listing some of the additional names of this new economy, such as the “relationship economy,” “cooperative economy,” “access economy,” “peer-to-peer (or p2p) economy,” and the “grassroots economy”).

[2] Id. at 3.

[3] Id.

[4] Ole Kjoer Mansfeldt, The “Airbnb Experience” and the Experience Economy:  The Spatial, Relational and Experiential In-betweenness of Airbnb, in Spatial Dynamics in the Experience Economy 103, 103 (Anne Lorentzen et al. eds., 2015).

[5] Anne Lorentzen et al., Spatial Dynamics in the Experience Economy, in Spatial Dynamics in the Experience Economy, supra note 4, at 3, 3.

[6] Airbnb boasts that it has connected over sixty million guests with hosted properties in more than 34,000 cities in over 190 countries since its founding in 2008. About Us, Airbnb, https://www.airbnb.com/about/about-us (last visited Apr. 23, 2016).  By comparison, competitor FlipKey (which is owned by TripAdvisor) features 300,000 vacation homes and rooms (but no shared rooms like Airbnb) in over 11,000 cities. About Us, FlipKey, https://www.flipkey.com/pages/about_us (last visited Mar. 31, 2016). FlipKey’s guest database includes only 34,000 travelers. How are FlipKey and Airbnb Different?, Tripping, https://www.tripping.com/industry/rental-companies/flipkey-vs-airbnb (last visited Mar. 31, 2016).

[7] About Us, Airbnb, https://www.airbnb.com/about/about-us (last visited Apr. 23, 2016).

[8] A recent survey conducted by PwC (formerly Price Waterhouse Coopers) found that 78% of U.S. adults who were familiar with the sharing economy perceived the building of a stronger community to be among its benefits, while 89% agreed that the sharing economy is based upon trust between providers and users. Moreover, 69% agreed that they would only trust a sharing economy company when it is recommended by someone they trust. PwC, Consumer Intelligence Series:  The Sharing Economy 9, 16, http://www.pwc.com/us/en/industry/entertainment-media/publications/consumer-intelligence-series/assets/pwc-cis-sharing-economy.pdf.

[9] Mansfeldt, supra note 4, at 103.

[10] PwC, supra note 8, at 15.

[11] Benjamin Edelman & Michael Luca, Digital Discrimination:  The Case of Airbnb.com (Harvard Bus. Sch., Working Paper No. 14-054, 2014), http://www.hbs.edu/faculty/Publication%20Files/14-054_e3c04a43-c0cf-4ed8-91bf-cb0ea4ba59c6.pdf; Benjamin Edelman et al., Racial Discrimination in the Sharing Economy:  Evidence from a Field Experiment (Harvard Bus. Sch., Working Paper No. 16-069, 2016) 2-3, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2701902##.

[12] Edelman & Luca, supra note 11.

[13] Edelman et al., supra note 11, at 11-12.  This reality is also reflected in anecdotal evidence on social media platforms such as Twitter where rejected African-American guests have used the hashtag #AirbnbWhileBlack to share their experiences and frustrations with Airbnb.  See Shankar Vendantam et al., #AirbnbWhileBlack: How Hidden Bias Shapes the Sharing Economy, NPR, http://www.npr.org/2016/04/26/475623339/-airbnbwhileblack-how-hidden-bias-shapes-the-sharing-economy.

[14] See generally Jamila Jefferson-Jones, Airbnb and the Housing Segment of the Modern “Sharing Economy”: Are Short-Term Rental Restrictions an Unconstitutional Taking?, 42 Hastings Const. L. Q.  101 (2015) (arguing that municipalities should refrain from over-regulating short-term rentals because such rentals help owners to defray the costs of homeownership, thereby shifting some of the burden of homeownership in a manner that can potentially keep owners from facing foreclosure and/or prevent blight which, in turn, will benefit neighborhoods); Jamila Jefferson-Jones, Can Short-Term Rental Arrangements Increase Home Values?:  A Case for Airbnb and Other Home Sharing Arrangements, 13 Cornell Real Est. Rev. 12 (2015) (noting some of the economic advantages of hosting to both the hosts and their neighborhoods).

[15] Airbnb, www.airbnb.com (last visited Apr. 23, 2016).

[16] See Shankar Vendantam, supra note 13 (examining the effect of implicit bias against African-Americans on Airbnb bookings).

[17] Benjamin Edelman et al., supra note 11 (defining first and second-generation sharing economy online platforms).

[18] Id.

[19] See generally Airbnb,  www.airbnb.com (last visited April 23, 2016).

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id.

[25] Id.

[26] Id.

[27] Michael Todisco, Share and Share Alike? Considering Racial Discrimination in the Nascent Room-Sharing Economy, Comment, 67 Stan. L.R. Online 121, 127 (2015); see also Nancy Leong, The Sharing Economy Has a Race Problem, Salon, Nov. 2, 2014, http://www.salon.com/2014/11/02/the_sharing_economy_has_a_race_problem/ (discussing the possible effect of implicit biases on sharing economy transactions).

[28] 42 U.S.C. § 1981(a).

[29] Id. at. § 1982 (“All citizens of the United States shall have the same right, in every State and Territory, as is enjoyed by white citizens thereof, to inherit, purchase, lease, sell, hold, and convey real and personal property.”).

[30] Jones v. Alfred H. Mayer Co.¸ 392 U.S. 409 (1968) (regarding Section 1982); Runyon v. McCrary, 476 U.S. 160 (1976) (regarding Section 1981).

[31] See Nancy Leong & Aaron Belzer, The New Public Accommodations, 105 Georgetown L.J. ____ (2017) (forthcoming), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2687486

[32] See, e.g., Daniels v. Dillard’s, Inc., 373 F.3d 885, 887 (8th Cir. 2004).

[33] “Paired testing” is a “methodology in which two testers assume the role of applicants with equivalent social and economic characteristics who differ only in terms of the characteristic being tested for discrimination, such as race, disability status, or marital status.” Office of Policy Development and Research, U.S. Department of Housing and Urban Development, Paired Testing and the Housing Discrimination Studies, Evidence Matters  (2014), https://www.huduser.gov/portal/periodicals/em/spring14/highlight2.html (last visited April 22, 2016).

[34] See Michael Todisco, supra note 27 (noting that the National Fair Housing Alliance has found that such testing is not feasible).

[35]  42 U.S.C. §§ 1981(a), 1982.

[36] 42 U.S.C. § 2000a(b)(1).

[37] Id.

[38] List Your Space: Airbnb Lets You Make Money Renting Out Your Place, Airbnb,  https://www.airbnb.com/rooms/new (last visited Apr. 23, 2016) (examining the historical context of women homeowners “taking in boarders” and the proliferation of boarding houses in the nineteenth century as a corollary to today’s home sharing market).

[39] See Todisco, supra note 27, at 125; see also Leong & Belzer, supra note 31.

[40] These exemptions were typically referred to as the “Mrs. Murphy” exemptions because during congressional hearings, the exemptions were discussed in terms of an imagined “Mrs. Murphy’s Roominghouse” run by a Mrs. Murphy lived on the premises and who did not wish to rent to African-Americans. See House Judiciary Committee Report reprinted in BNA, Inc., The Civil Rights Act of 1964: What it Means to Employers, Businessmen, Unions, Employees, Minority Groups 135-287 (1964)

[41] Id.; see also, Jamila Jefferson-Jones, Airbnb and the Housing Segment of the Modern “Sharing Economy”, supra note 14, at 562-64.

[42] See Leong & Belzer, supra note 31.

[43] See Part I.A.

[44] 42 U.S.C. § 3601 et seq.

[45] Id. at.§ 3604(a).

[46] Id. at § 3603(2) (emphasis added).

[47] Office of New York Attorney General Eric T. Schneiderman, Airbnb in the City (October 2014), http://www.ag.ny.gov/pdfs/Airbnb%20report.pdf  (last visited April 18, 2016).

[48] Id. at 10.

[49] Id.

[50] Id.

[51] Id.

[52] Tex. Dept. of Hous. & Cmty. Aff. v. The Inclusive Cmtys. Project, 576 U.S. ___ (2015).

[53] Id.

[54] 42 U.S. C. § 3605(a).

[55] Id. at § 3605(b)(2).

[56] Id. at § 3603(b)(1)

[57] See Robin Paul Malloy & James Charles Smith, Real Este Transactions: Problems, Cases and Materials 25 (3d ed. 2007) (defining “transactional intermediary”).

[58] Id.

[59] 47 U.S.C. § 230(c).

[60] Airbnb, https://www.airbnb.com/standards (last visited April 23, 2016).

[61] For example, San Francisco requires that online housing short-term rental platforms inform hosts of all applicable laws governing their transactions on the platform.  See S.F., Cal., Admin. Code § 41A.5(g)(4)(A) (2015).

[62] 47 U.S.C.  § 230(c).

[63] See Todisco, supra note 27 (arguing that “[w]ithout liability, Airbnb currently has little incentive to fix its discrimination problem . . . and that [w]ere the CDA amended, Airbnb would be forced to find internal solutions”).

[64] Id. at  § 230(b).

[65] Id. at § 230(c).

[66] See Leong & Belzer, supra note 30.

[67] See id.

[68] Fair Hous. Council of San Fernando Valley v. Roomates.com, LLC, 521 F.3d 1157 (9th Cir. 2008).

[69] Chicago Lawyers’ Comm. for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519 F.3d 666 (7th Cir. 2008).

[70] Roomates.com, 521 F.3d at 1165.

[71] Craigslist, Inc., 519 F.3d at 670-71.

[72] Leong & Belzer, supra note 30.

[73] See Malloy & Smith, supra note 58, at 25 (outlining the activities of real estate brokers as “transactional intermediaries.”

[74] Id.

[75] About NAR, Realtor, http://www.realtor.org/about-nar (last visited April 25, 2016).

[76] Malloy & Smith, supra note 58, at 26.

[77] Code of Ethics and Standards of Practice of the National Association of Realtors, Article 10 (Duties to the Public), http://www.realtor.org/sites/default/files/policies/2016/2016-NAR-Code-of-Ethics.pdf (Jan. 1, 2016).

[78] Id. at Preamble.

[79] See Kasan and Orsi, supra note 1, at 7.

[80] 47 U.S.C § 230(e)(2).

[81] Id. at § 230(e)(1).