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Airbnb's obligation to prevent discrimination falls into legal grey area

A 3D printed people's models are seen in front of a displayed Airbnb logo in this illustration taken, June 8, 2016. REUTERS/Dado Ruvic/Illustration

A human rights lawyer says it is a “complicated question” whether or not Airbnb could be held liable in Canada for racial discrimination.

The issue has gained prominence in the U.S. after a class-action suit was filed in May against the online home-rental service. The chief-plaintiff, Gregory Selden, a 25-year-old African-American, claims Airbnb violated civil rights law, which forbids housing discrimination, when a host denied him accommodation last year based on his race.

A paper by Harvard researchers also found “widespread discrimination” by hosts against users with names that sound African-American.

The study used fictional names, such as Lakisha or Rasheed, and found that they were 16 per cent less likely to be accepted as guests when compared to users with Caucasian-sounding names.

However, legal action against the San Francisco-based company could prove difficult because it has a clause that requires users who reside in the U.S. to waive their right to a trial by jury or to participate in a class-action lawsuit, arbitration and other legal actions.

It updated its terms of service to highlight this fact in March.

When asked if a Canadian user of Airbnb could take legal action against the company in the case of discrimination, Faisal Bhabha, a professor at York University’s Osgood Law School and former vice-chair of the Human Rights Tribunal of Ontario, said that it is a complex matter.

“The issue you’re asking about raises a number of questions and the answers are, I think, far from settled at law,” Bhabha told Yahoo Finance Canada in an email.

Bhabha said that part of the complexity arises from the fact that the sharing economy operates across traditional legal borders.

One issue is the jurisdiction that a potential case would fall under and which anti-discrimination law applies.

Bhabha said, generally, provincial human rights legislation, such as the Ontario Human Rights Code, will cover the rental-housing market and the provision of goods and services to the public.

“Thus, a preliminary question is: Is Airbnb offering services and/or housing in the province of Ontario? Is it operating a business in Ontario, and does it have assets in Ontario for the purposes of enforcement?” he said.

Bhabha also said there’s the question of whether it is Airbnb’s legal duty not to discriminate, the individual host’s, or both. 

“Can Airbnb be held liable for discrimination by a host using its site?” said Bhabha. 

He added that in Ontario, the provincial human rights code guarantees residents the right to equal treatment when renting an apartment, house, condominium, commercial property or hotels. 

In light of this, Bhabha said it would likely be “pretty straightforward” to bring a complaint to the Human Rights Tribunal of Ontario against an Airbnb host based in the province if a guest was denied a stay based discriminatory reasons.

“Whether Airbnb itself could be held liable is a more complicated question,” he added.

Airbnb has been increasingly outspoken in its desire to tackle discrimination. 

Last month, the company’s CEO, Brian Chesky, said at a company event that discrimination is a “huge issue for us” and said it will be looking at ways to “create a more inclusive platform.” 

And on Wednesday, Laura Murphy, the former head of the American Civil Liberties Union’s D.C. legislative office who is leading a 90-day review of the company’s discrimination polices, penned an op-ed in the AFRO-American Newspaper that said she will “hold them accountable” and laid out the company’s plans.

After spending more than four decades fighting for equality at the ACLU and in other organizations, I’ve seen companies pay lip service to these issues before,” wrote Murphy.

“But Airbnb leaders have shown a willingness to be transparent and have expressed to me a sincere desire to ensure that its policies, technology and platform are not facilitating discrimination.” 

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