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excerpted from: Brenna R. McLaughlin , #Airbnbwhileblack: Repealing the Fair Housing Act's Mrs. Murphy Exemption to Combat Racism on Airbnb, 2018 Wisconsin Law Review 149 (Student Comment) (227 footnotes) (Full Document)


Iairbnbn many ways, Quirtina Crittenden is Airbnb's ideal consumer. She is a millennial, travels, has a steady income, and embraces the opportunity to skip expensive hotels by renting out cheaper rooms from homeowners on Airbnb's website. Despite her willingness to take advantage of America's fastest-growing lodging category, she had difficulty booking a place to stay:

The hosts would always come up with excuses like, "oh, someone actually just booked it" or "oh, some of my regulars are coming in town, and they're going to stay there," Crittenden said. "But I got suspicious when I would check back like days later and see that those dates were still available."

Time and time again, Crittenden would send a request to a host for her desired dates, wait, and be steadfastly rejected. Crittenden is African American, and she began to wonder if her bad luck on Airbnb had something to do with her race. She shared her negative Airbnb experience with her Twitter followers using the hashtag AirbnbWhileBlack and began hearing back from many friends who had similar experiences. "‘The most common response I got was, "oh yeah, that's why I don't use my photo." Like duh. Like I was the late one,' Crittenden said." Airbnb currently requires hosts and guests to display their name and photos prominently on their profiles. So Crittenden ran an experiment by shortening her name to only "Tina" and changing her photo to a landscape picture. Crittenden reported that ever since she changed her name and photo on Airbnb, she has never had any problems booking a listing.

Rohan Gilkes, an African American tech entrepreneur from Washington, D.C., had a similar experience when he tried to book a house on Airbnb for an Idaho vacation. While the listing said his desired dates were available, they became suddenly unavailable after he sent the host his booking request. When Gilkes responded that his dates were flexible, his message went ignored and he never heard from the host again. However, rather than change his profile photo, Gilkes tried a different tactic. "So I had a white friend book for my same dates and all of a sudden [the host's] plans changed back ... [a]pproved immediately!" Frustrated by his experience and the many others shared by the hashtag AirbnbWhileBlack, Gilkes founded an inclusive alternative called Noirebnb geared towards providing accommodation for persons of all colors and gender identities. "When I started getting all these emails from people--black people, trans people, gay people--who were all going through the same thing, I felt like I had an obligation to do something."

Both Crittenden and Gilkes articulate a growing problem of systemic racism in America's newest lodging category. Founded in 2008, Airbnb is one of the world's largest sharing economy companies that seeks to solve the frustration of expensive hotels by replacing them with a cheaper, more personal alternative. Travelers can go to Airbnb's website and browse for anything from an entire house to a room in an apartment for rent in their desired city. Lodgings are posted directly by home owners or lease holders (called "hosts") looking to capitalize off extra space and the host has virtually complete discretion over who and when to rent to. While it has become a quick success, Airbnb faces harsh criticism that many white hosts refuse to rent to users of color and that the company has failed to stop the proliferation of racism on its platform. A January 2016 study by the Harvard Business School found that Airbnb users with "distinctly African-American names were roughly [sixteen] percent less likely to be accepted as guests than those with distinctly white names." This difference persisted no matter the host's race or gender, or whether the accommodation was shared with the host or not.

Racial discrimination on Airbnb is exacerbated by the fact that Airbnb is now America's largest hotel. Airbnb recently surpassed all worldwide hotel chains in value, making it the largest housing accommodation service in the world. Like many sharing economy scholars, fair housing advocates worry that our nation's housing laws are not keeping up with the explosion of peer-to-peer based transactions. While the 1968 Fair Housing Act ("FHA") brought new remedies for twentieth-century housing applicants facing racial discrimination, hidden within the FHA is the so-called "Mrs. Murphy exemption," which shields small owner-occupied apartments and homes from liability under the FHA. So long as a homeowner lives in the home or apartment unit she rents out and the building contains four or fewer rental units, she is free to racially discriminate against potential renters. Courts have held the Mrs. Murphy exemption also applies to shared-living situations where apartment lease holders rent out spare bedrooms within their units. As claims of racial discrimination on Airbnb grow, so do fears the Mrs. Murphy exemption shields both Airbnb and its hosts from liability under the FHA and allows hosts to legally discriminate against potential guests on the basis of race.

Airbnb currently finds itself in a regulatory gap and a legal remedy must be crafted to combat racism in the growing short-term rental market. While many sharing economy articles focus on fashioning new regulatory solutions, this Comment argues the FHA should be amended to adapt to the twenty-first century short-term rental economy. Amending the FHA to eliminate the infamous Mrs. Murphy exemption as applied to race and providing new collective causes of actions for litigants under the law will make the FHA an effective tool to combat racial discrimination by America's fastest-growing hotel. The FHA, developed before the boom of short-term, peer-to-peer housing rentals, does not currently protect Airbnb users from racial discrimination by hosts due to the Mrs. Murphy exemption. Although amendments are needed to effectively address the problems created by Airbnb's new housing category, the FHA nevertheless has potential to offer robust and consistent federal remedies to combat racial discrimination.

Part I of this Comment provides background on the FHA and the Mrs. Murphy exemption, and explains the Civil Rights Movement's role in shaping these regulations and their relationship to Airbnb.

Part II argues the Mrs. Murphy exemption shields Airbnb and its hosts from FHA liability and protects racial discrimination on its platform due to Supreme Court precedent on discrimination in shared housing and the Court's willingness to apply freedom of association interests to shared living scenarios. The Comment then discusses alternative Airbnb regulatory proposals and defends the FHA's ability to best police discrimination in the rapidly evolving short-term rental economy. Finally,

Part III of this Comment contends that Airbnb creates a commercial relationship more akin to a hotel than a roommate, and that Airbnb's short-term nature (where hosts may or may not share space with their guests) diminishes hosts' association interests; advocates for the repeal of the Mrs. Murphy exemption regarding race; and finally calls for the FHA to include liability for companies that facilitate rental transactions and eliminate the use of class-action waivers and arbitration clauses in fair housing litigation.

. . .

Advances must be made to address how our twentieth-century housing laws will intersect with the twenty-first century short-term rental economy. The biases and racial animus surrounding Mrs. Murphy's boarding house imagery still thrive in America today. While Congress and the Supreme Court have taken strides to improve our fair housing laws, "[m]uch progress remains to be made in our Nation's continuing struggle against racial isolation." Airbnb has taken steps toward addressing systemic racism on its platform, but more must be done on a national level to ensure communities of color are afforded comprehensive remedies in America's fastest growing accommodation category.

The evolution of private peer-to-peer transactions from traditional public accommodation has created a chasm of liability in our housing economy that must be addressed by Congress. Amending the FHA to repeal the Mrs. Murphy exemption in regards to race, providing for liability against companies like Airbnb, and prohibiting the use of class-action waivers and arbitration clauses in fair housing litigation will provide discriminated groups with powerful and comprehensive federal remedies. As the sharing economy thrives and Airbnb continues to change how travelers find a place to stay, these changes will be especially important to ensure America's fastest growing accommodation provider is not immune from our nation's fair housing laws. Shielding Mrs. Murphy's Airbnb from FHA liability merely propagates the Kerner Commission's grim prophecy that our nation is a separate and unequal society. "The exemption does not shield an intimate relationship or protection-worthy expression. It shields only Mrs. Murphy's ‘right' to discriminate, a right substantially outweighed by a prospective tenant's right not to be discriminated against."