Discrimination in Semi-Public Spaces: The Sharing Economy as Case Study

• In Event: Entanglements of Economics and Politics

Abstract

The sharing economy is blurring traditional lines between public and private spaces in ways unanticipated by law. Where there used to be a fairly clear demarcation between private and public transportation, individuals now give strangers rides in their own vehicles via ride-sharing services like Uber and Lyft. Where once it was clear that laws governing hotels did not extend to private homes, home-sharing services like Airbnb muddle that distinction. This change is particularly significant with respect to populations such as racial and ethnic minorities and the physically disabled who rely on public accommodation laws and other legal rules for protection. Legislatures, courts and sharing economy companies are having to confront whether and how to apply non-discrimination laws in these newly semi-public spaces. At the same time, sharing economy platforms also serve minority communities in ways traditional services could not, circumventing discriminatory attitudes and behaviors. People who once found it difficult to hail a taxi on account of their race may receive better service from ride-hailing companies. Other sharing economy services have emerged geared specifically to minority groups. For example, San Francisco's Homobiles provides late-night rides to the LGBTQ community. A balanced evaluation of the sharing economy's impact on discrimination must take into account these positive developments on minority rights and inclusion, as well as the new challenges posed.
Addressing discrimination in the sharing economy is complex because the economic formations are new and evolving and a wide array of platforms use different interfaces and technologies; it also involves the perennial trade-off between rights to association and expression on the one hand, and equality on the other. But instead of permitting acts of discrimination, prejudice in the commercial sharing economy ought to be legally combatted by eliminating exemptions and by amending federal law in three other ways to ensure platforms are doing all they can to reduce acts of prejudice, and not escaping liability for discrimination.
First, Airbnb ought to be classified as a real estate broker within the meaning of the FHA; brokers are liable for discrimination under the Act, even if individual property owners are exempt. Second, the Communications Decency Act (CDA) of 1996, which shields online platforms from liability for user-generated content, including “users’ violations of anti-discrimination laws,” should be held inapplicable to sharing platforms. Third, a new exemption to the CDA, creating a “private right of action against the discriminatory practices of online real estate businesses” like Airbnb, also should be enacted. Such a right could be crafted to hold platforms to account for not taking steps to reduce the likelihood of discrimination, including when due to implicit bias. Proposals to have Congress target discrimination in the sharing economy by imposing data disclosure requirements on platform companies are also appealing, as is the notion that platform design itself be regulated—though such legislation would need to be carefully crafted to survive legal challenge.
If such steps were taken, more socially and politically productive encounters would be likely to take place. Airbnb’s founder and CEO has said he and his co-founders were not “fully conscious” of the discrimination “issue” at first and that the company had in the past lacked a sense of “urgency” in addressing it. The reason for this may have been that sharing economy companies conceive of themselves, or at least publicly portray themselves, as “mere platforms” through which parties—independent contractors and customers—meet and transact. Airbnb, for instance, “doesn’t hold inventory, set prices, or tell hosts how to handle their rental exchanges,” and thus can argue that it is not responsible when hosts “deny guests accommodations on account of their race or gender.” In this way, they are distinct from, say, hotel chains that exert direct control over their staff and properties. But sharing platforms are also clearly more than neutral interfaces with no influence on how users interact. Companies have taken steps on their own to address these shortcomings, but they should be legally accountable for ensuring that they are actively reducing the chances of discriminatory behavior, including when such behavior is rooted in implicit bias. By taking the recommended steps and amending the applicable legal framework, Congress and the courts would also be acknowledging that it is in democratic society’s interest to have people from all backgrounds encounter each other; this is what makes the sharing economy a potential vessel for greater sociality at a larger scale, and for reinvigorated self-government in a diverse society. In other words, more than serve as a corrective for discrimination, changes in the law might actually enhance democratic culture to the benefit of all.

Author

• Geoffrey C Upton, Seton Hall Univ.