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Jim Crow might creep past tough Airbnb policies

jacobsen_joel_BizOIn spring 1953, Robert Foster, M.D., left the Army after years of service in Europe. He drove from his hometown in Louisiana to start his civilian career in California.

Wearied after many hours at the wheel, he stopped at a motel outside Phoenix. “Oh, my goodness,” the proprietor said. “We forgot to turn off the vacancy sign.” At the next motel, the owner told the doctor they had just rented their last room.

There was yet a third motel at that highway intersection. Dr. Foster presented himself at the front desk. The woman there said she would check if anything was available. She disappeared into the back office. Through a glass pane, Dr. Foster could see her talking at length with a man, apparently her husband. Finally, the husband emerged to say, “We’re from Illinois. We don’t share the opinion of the people in this area. But, if we take you in, the rest of the motel owners will ostracize us. We just can’t do it. I’m sorry.”

As you’ve guessed, Dr. Foster was African-American and, for the motel-keepers of greater Phoenix, that counted for more than his medical degree and military service. I have the story from Isabel Wilkerson’s superb “The Warmth of Other Suns: The Epic Story of America’s Great Migration.” It has an eventual happy ending. Dr. Foster established a successful medical practice in Los Angeles, becoming Ray Charles’ personal physician. Their doctor-patient relationship was immortalized in the last verse of the R&B classic “Hide nor Hair,” in which Charles jokingly accuses Dr. Foster of running away with his woman.

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During the years of Jim Crow, an entrepreneur named Victor H. Green published an annually updated directory called “The Negro Travelers’ Green Book” (or variations on that title). Organized by state and town, it listed places where black motorists could spend the night or grab a bite to eat. The 1953 edition, now available online, offered black visitors to Albuquerque their choice of two rooming houses and one restaurant, Aunt Brenda’s on Arno Street.

Most of us react to such stories with deep dismay mixed with relief that it’s not that way any more. But not everyone feels that way. In June, USA Today reported that Airbnb had terminated a North Carolina host who used the N-word on the company’s messaging system to explain to a black businesswoman why he wouldn’t rent to her. That now-ex-host was doing his single-handed best to bring Jim Crow back.

I had my first experience with Airbnb this spring and it was a good one. I was able to rent a one-bedroom apartment near the shore in beautiful Port Townsend, Wash., for the price of a modest motel room. But booking on Airbnb was nothing like making a reservation with a hotel chain or Travelocity. I submitted a request, along with my photograph, asking whether the unit was available on the days of my choice. My would-be hosts then had the opportunity to accept me or not. At the end of my stay, I had the odd experience of reading my hosts’ review of my guestship, but only after I had first posted my review of their hospitality. Airbnb is an online reputation bank.

Since Airbnb hosts are inviting strangers onto their properties and often into their homes, it makes sense that they should reserve the power to say no. And the advance sending of photographs makes sense, too, because it gives homeowners assurance that they’re opening the door to the right person.

But a team of Harvard Business School researchers found that the system of offer and acceptance also provides an opportunity for racial discrimination. They prepared twenty user profiles, identical but for the names assigned to them. Some names were distinctively African-American while others were distinctively white. Using the profile, they made preliminary inquiries into the availability of 6,400 listings in four cities. They found that “African-American guests received a positive response roughly 42 percent of the time, compared to roughly 50 percent for white guests.” And that was without photographs.

Airbnb itself claims to have more than 2 million hosts worldwide. The website AirDNA estimates a quarter of those are in the United States. The difference between 50 percent and 42 percent when multiplied by half a million makes for a lot of hosts who keep forgetting to turn off their vacancy signs. It may be that the North Carolinian ex-host was unusual only in his candor.

Airbnb itself has a strong policy against discrimination (and it bears repeating that it banned that North Carolina host). But the essence of its business model is that it doesn’t own the units whose rental it facilitates. It doesn’t tell its hosts how to run their businesses. That leaves a lot of room for less outspoken bigotry.

It’s not clear what, if any, federal anti-discrimination laws apply to short-term rentals. The 1964 Civil Rights Act outlaws discrimination in public accommodations, but specifically excludes from its reach any establishment located in “a building which contains not more than five rooms for rent or hire and which is actually occupied by the proprietor of such establishment as his residence.” Back in 1964, that described an old-fashioned rooming house. Today, it’s the classic Airbnb setup. The Fair Housing Act also prohibits discrimination, but it applies only to “dwellings,” a vaguely defined term that implies a stay measured in weeks rather than days. Consequently, most short-term rentals seemingly slide right through the net of federal anti-discrimination laws. That leaves only state and local laws, which aren’t sufficiently organized even to qualify as a patchwork.

Can an online “Green Book” guide to Airbnb hosts be far behind?

Joel Jacobsen is an author and has recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com

 

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