I hate to say it...but..."I told you so"....I"ve been predicting for a couple years now, that this was going to happen. I've been warning people to NOT write "no children" or anything like that in their listing description. Also I can't believe Airbnb set up listings to have hosts check off a box saying "not child friendly" as anyone who checks that box could be subject to a lawsuit.
And this is just the way I expected it to happen -- not necessarily through an actual guest who actually wanted to stay at someone's listing, and was turned down, but rather by someone simply trolling through ads, trolling through listings, looking for the phrases they could use to make a buck off of. I believe there are quite possibly more scammers benefitting from non-discrimination laws, than people for whom the laws were ostensibly designed. THis is part of why I oppose non-discrimination laws as applied to private homes. These laws are super duper wonderful material for scammer-plaintiffs and their attorneys, a variety of trolls who suffer no injury whatsoever, but just make money from sentences. Write a few words, pay the scammers.
Yes, this is something a lot of hosts do ...and for good reason. But the stupid -- and I mean, VERY STUPID --- laws of the United States of AMerica forbid making this common sensical reasonable statement about who you want in your home.
If you detect some hostility here towards the intrusion of government into our private homes, you are astute.
Post by High Priestess on Nov 4, 2016 20:12:23 GMT
Well the problem is that once you check either "yes" or "no" on suitable for children/suitable for infants, you can't go back to having that simply unchecked. It's either yes or no...and it's not a good idea to check either of those options. So really the best thing would be to call Airbnb and ask if you can just have that box left unchecked.
So then do the same US legal definitions of what's considered a "place of accommodation" with regards to discrimination (in the service animal thread) not apply as well to discrimination of children? I don't understand how this person is able to sue, based on that US law, so clearly spelled out about what is and is not defined as place of accommodation.
Post by High Priestess on Nov 4, 2016 23:53:43 GMT
The reason that the person (the TROLL) can sue is that the host made a discriminatory statement. NO ONE but NO ONE can make a discriminatory statement in their ads (I refer to the protected categories mentioned by the FHA, as indicated below, and perhaps those covered by state laws), regardless of whether they can legally discriminate in their choice of whom to rent to. So, hosts renting out a room in their home, can definitely refuse to rent to families with children, but they CANNOT STATE "no children" in their advertising, or anywhere in their communication with the guest. At no point anywhere in conversing with a guest can you state that you don't accept children.
This difference between discriminatory STATEMENTS and discriminatory DECISION MAKING is what confuses so many people. I've done many posts over the years about this issue but it continues to confuse people and invariably hosts seem to not understand the distinction between these two things, and how, for many hosts, one can be permitted while the other is not permitted, or what categories are covered and which arent'.
(c) it shall be unlawful-- ---To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.
ANd you can read this explained in words that are easier to understand here:
Advertising: Federal Fair Housing laws prohibit discriminatory advertising in all housing, regardless of how large or small the property. However, as discussed below, advertising which expresses a preference based upon sex is allowed in shared living situations where tenants will share a bathroom, kitchen, or other common area. Decision-making: Although the prohibition on discriminatory advertising applies to roommate and shared housing situations, federal Fair Housing laws do not cover the basis of decisions made by landowners who own less than four units, and live in one of the units. This means that in a situation in which a landlord owns less than four rental units, and lives in one of the units, it is legal for the owner to discriminate in the selection process based on the aforementioned categories, but it is illegal for that owner to advertise or otherwise make a statement expressing that discriminatory preference.
The service animal issue comes under the ADA law. ADA law doesn't apply to private homes, as stated in the service animal thread. However, discrimination issues come under the FHA law, and apply to all homes, at least as far as section (c) above, about discriminatory statements. However, the protected categories covered by the FHA are only those shown....federal law does NOT include sexual orientation or gender identity. Some state laws DO include those things (eg California law does) but other state laws (eg Texas) do NOT include those, so in those states it's legal to say "we dont' rent to gays", but of course, Airbnb won't let you say that as an Airbnb host. BUt if you're just doing standard long term rentals, you could say that...but not on Craigslist, which I think will remove ads that have such statements, even though in TX it's not illegal to say that.
So...to sum up....there are many different laws and policies that apply here and anyone renting out property needs to understand all these laws to avoid getting in trouble. For those renting property in the USA:
THere are Federal Fair Housing Act laws. There are individual State laws prohibiting discrimination on certain grounds. There are ADA (American Disability Act) laws. THere are Airbnb non-discrimination policies. There are Craigslist policies against making discriminatory statements in advertising. There are various other platforms' specific rules and policies.
Then, the issues of discrimination are broken down into: (1) Discriminatory statements (permitted or not) (2) Discrimination in Decision making (permitted or not)
YOu are a tenant or homeowner offering a room for rent in the home in which you live.
As long as you're not using Airbnb to rent your space, you can discriminate in decision-making -- You can decide you dont' want to rent to people from Russia, or to white people, or to heterosexuals. (National origin, race -- protected at federal level, sexual orientation --- not protected)
If you are using Airbnb to rent your space, based on Airbnb's nondiscrimination policies (but not based on US law) You cannot discriminate in decision making based on certain grouns. You cannot decide you dont' want to rent to from Russia, or to white people, or to heterosexuals. All those are categories covered by Airbnb's nondiscrimination policy.
Regardless on what platform you are renting (Airbnb, craigslist, your own website, anything) you cannot make discriminatory statements relating to the protected categories in advertising or statements -- you cannot state in your ad, "No Russians, no white people." (National origin, race).
You cannot make discriminatory statements relating to categories not protected by FHA law but included in nondiscrimination policies of Airbnb, or Craigslist -- you cannot state in your Airbnb listing, or in your Craigslist ad, "no heterosexuals"
You can make discriminatory statements related to categories not protected by FHA law AND not included in your state's nondiscrimination policy, in places online or elsewhere that dont' forbid such --- if you live in Texas or Mississippi, which don't prohibit discrimination on the basis of sexual orienation, and seek renters through your own website ---- you can say on your own website, "no heterosexuals" (but...this might cause you problems if your website software provider, eg Wordpress, takes issue with it and shuts down your website...)
You cannot make discriminatory statements related to categories not protected by FHA law but included in your state's nondiscrimination policy -- so if you live in California, which has a policy prohibiting discrimination on the basis of sexual orientation -- you cannot say "no heterosexuals."
You can discriminate in decision making about service animals -- you can decide you don't want to rent to people with service animals.
You can make discriminatory statements relating to service animals in some places-- you can state you don't accept guests with service animals in conversations with guests, on your own website, or on websites that dont' prohibit that -- but AIrbnb would probably not like to see this, and it could be "iffy" on Craigslist.
"Interestingly, hotels and restaurants can legally ban children (BnB's and resorts do this) since they are operating under the 1964 Civil Rights Act which prohibits discrimination in public accommodation based on race, sex, national origin, religion, (and didn't include familial status as a protected category).
So the legal team at AirBNB clearly knows that we cannot define ourselves as hotels (since this opens the door to zoning regulations, safety requirements, city inspections, sprinkler systems in case of fire, etc. and the entire rationale of us avoiding all that is we've been saying, "We are not hotels!"). If we are not defining ourselves as commercial businesses but as landlords renting out residential space then this means we our held to the Civil Rights Act of 1968 which included familial status as a protected category."
I see. Okay. Thank you Deborah for the helpful and exhaustive information. It was quite complex to figure out on my own, but you've made it far easier for me to put into context. I will take a bit of time before deciding how to proceed with contacting Airbnb to un-tick my "may not be suitable for children 0 to 12" box.
Glad I could help, Grace. It is complex -- it's a big sticky messy complex trap that too many very decent well-meaning people get caught up in!
THis is part of why I dislike all nondiscrimination laws. In my ideal world, there would be NO nondiscrimination laws. None, zero, zip, nada. And thus no way for trolls to sue you for what you say in ads for renting out property.
This theoretically protects Airbnb hosts from lawsuits by Airbnb guests, though it's not clear if it protects us from random trolls simply scanning the internet looking for victims. THose trolls may not be guests. THey may not be "using" the Airbnb site and thus may not be legally considered as Airbnb users. It remains to be seen if this ARbitration clause protects hosts from such trolls....but even if it does, the host would still have to put in time and money to respond to the legal action against them, just as, in this article quoted, Airbnb had to put in time and money to finally get the garbage race discrimination lawsuit filed by Greg Selden thrown in the trash can where it belongs.
The settlements they cited in the article were with trailer parks, which are companies like a hotel. They cannot turn down good guests. The other, smaller settlements were principally extortion. The guy placed dticky notes on the door: that means the listing pictures show the door or the host made it identifiable. Generally a thing to avoid. I don't believe the troll and the cabinet specialised in extortion would win a case - already on formality, how to prove without doubt that a listing belongs to a certain person. Even if he finds the person, he could be a manager/ cohost for another place. Then it's still a private home. Then there must be intent to discriminate. Not intent to keep children from breaking their necks. The extortion works as long as the victims pay. Which may be cheaper individually than engage in the costs of a lawsuit, but one day tgey find a victim that fights back.
Those things exist everywhere. In Europe, they do it with copyright infractions. "You downloaded an obscure sex video, that nobody in his right mind would buy, (we had to hide it as a second link in a normal button), you have to pay 7000 in damages. Or 2000 within a week." The first who is not ashamed informs the attorney, they are pursued, vanish and start it all over with new names and files.
This discrimation works the same way: people are afraid to be found discriminating and the sticky note on the door brandish the house.