Tag Archives: public accommodations

“The New Public Accommodations”: forthcoming in Georgetown Law Journal

Very pleased to announce that my article “The New Public Accommodations,” coauthored with Aaron Belzer, will be published in the Georgetown Law Journal in 2017. The piece discusses race discrimination in the sharing economy; all feedback is warmly welcome.

New on SSRN: “The New Public Accommodations”

A full draft of my article “The New Public Accommodations,” coauthored with Aaron Belzer, is now available on SSRN. Here’s the abstract:

The sharing economy raises important new questions about public accommodation laws. Such laws originally were enacted to prohibit establishments open to the public—for example, hotels, restaurants, taxi services, and retail businesses—from discriminating on the basis of characteristics such as race, color, religion, and national origin. Sharing economy businesses are functional substitutes for these traditional public accommodations. Yet existing public accommodation laws are not always a good fit for the unique features of the sharing economy.

This Article is the first to argue that public accommodation laws must evolve to address race discrimination in the sharing economy. Available evidence suggests that, in many circumstances, race discrimination affects the sharing economy in much the same way it affects the traditional economy. Sharing economy businesses use online platforms to connect providers of goods and services (drivers; landlords) with users of those goods and services (passengers; renters). These platforms often make race visible to both providers and users by requiring that they create profiles that include names, photographs, and other information. Such profiles may trigger conscious and unconscious bias and result in discrimination even if the parties never meet in person. Moreover, sharing economy businesses encourage or even require providers to rate users. Rating systems aggregate biases, and users who are members of disfavored racial categories may begin to receive worse service, or, eventually, to be denied service altogether.

This Article examines existing public accommodation laws—Title II of the Civil Rights Act of 1964, 42 U.S.C. § 1981, 42 U.S.C. § 1982, and the Fair Housing Act—and concludes that they hold considerable promise for remedying discrimination in the sharing economy. Nonetheless, the sharing economy presents new issues that existing laws do not entirely address. To the extent that sharing economy businesses perform the same function as traditional public accommodations yet escape existing laws, we argue that those laws should be amended and briefly describe the form the new laws should take.

Feedback is very much welcome–please feel free to contact either me or Aaron.

In Progress: The New Public Accommodations

I’m still taking a break from blogging while I continue to try to fully resolve my hand issues. I have, however, posted a short summary of my work in progress relating to race discrimination in the sharing economy on SSRN. The piece is called “The New Public Accommodations.” Feedback is welcome, and if you would like to see a longer draft in progress — one I’m not quite ready to post publicly — please feel free to email me.

Colorado Baker Refuses to Make Anti-Gay Cake

I spoke with Vox.com and 9News Denver about why a baker at Azucar bakery who was asked to make a cake featuring anti-gay commentary is entitled to refuse to make such a cake, and why this matter is distinguishable from the recent Masterpiece Cakeshop dispute in which the Colorado Civil Rights Commission found that the could not refuse to serve a same-sex couple.

I see a number of differences between the two cases. Most importantly, the baker at Azucar didn’t actually refuse to serve anyone. She told the prospective customer that she was happy to make the Bible-shaped cake he requested, and to sell him a frosting kit so that he could decorate the cake with the sentiments he requested, but that she would not do the decorating herself. This makes clear that she was not unwilling to serve him because of his religion. In fact, Azucar has a long history of serving Christian customers and making explicitly Christian-identified cakes, and the owner herself is Christian. But if the owner was forced to decorate the cake with a message in she opposed, it would actually violate her own free speech rights. The U.S. Supreme Court has a long tradition of striking down attempts by the government to compel speech, and this would be a clear example of such compulsion. Continue reading

New Salon.com Piece: “The Sharing Economy Has A Race Problem”

I have a piece in Salon today about racial bias in the sharing economy. How can we prevent the race discrimination that affects businesses in the traditional economy from infecting the new sharing economy as well? The Salon piece gestures at a larger project I’m currently working on that will probably take the form of a law review article, tentatively titled “The New Public Accommodations,” that will look at how we can prevent private-actor race discrimination on within the sharing economy. Continue reading