My coauthor Aaron Belzer and I have a piece on the Washington Post’s Monkey Cage Blog today about race discrimination in the sharing economy. It builds on recent media attention, particularly the sobering stories shared on Twitter under the #AirBnbWhileBlack hashtag, and incorporates some of the analysis from our forthcoming article “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.
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.
I’m quoted in this Businessweek story asking whether Uber can deny service to people that it dislikes. The answer isn’t completely clear yet, and depends on whether Uber’s a common carrier — a carrier like an airline, bus, taxicab service, etc. that holds its services out to the general public. A regulatory agency in Baltimore found that Uber was a common carrier in September 2014, but so far no other has to my knowledge. I suspect this is something that regulators and courts will be working out for a while.
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
ETA: On the basis of the blog post below, I was invited to discuss possible problems with Uber’s passenger rating system on NPR’s “On the Media.” You can listen here.
For the uninitiated, Uber is a taxi-like company that, with the touch of a button on a ridiculously easy-to-use app, sends a driver in a classy black car to your location using GPS. I recently learned that Uber not only stores data about its passengers, but also allows its drivers to rate passengers and makes the ratings available to other drivers.
I’ve long known that customers rate Uber drivers; when you order a car, you can see the rating from one to five stars of the driver who is picking you up. And I’ve always assumed that the company keeps records of when you use the app and where you go. But it turns out that the drivers also rate passengers, and that — at least anecdotally — the various drivers use your rating information to decide whether and how quickly to pick you up. The app interface looks like this before you order a car, so you can see where the cars are in real time and an estimate of how long it will take a car to pick you up: