Brooklyn Law Review


The “sharing economy” is not equally accessible to all. The sharing economy’s travel accommodations giant, Airbnb, illustrates this problem. At least one study has found that requests on Airbnb from guests with distinctively African-American names are approximately 16 percent less likely to be accepted than identical guests with distinctively white names. Some Airbnb “hosts,” including hosts that list multiple units, insist that they are not subject to civil rights laws relying on First Amendment jurisprudence, property law and business justifications for support. These arguments are identical to arguments raised and ultimately dismissed in opposition to blacks’ right to travel prior to the Civil War, at the outset of the Jim Crow era and at dawn of the passage of Title II. Further, an evaluation of Title II’s enforcement in the over fifty years since its passage offers compelling evidence that this question of balancing hosts’ freedom of association against patrons’ dual freedom to associate is resolved by the nuances within the statute itself. It is the main premise of this article that hosts in the sharing economy’s travel sector are, generally, prohibited under Title II and similarly worded state laws from discriminating and that those laws can be employed now to democratize public accommodations in the sharing economy in the short term. Moreover, the dual nature of units offered as public accommodations in the sharing economy–both hotel and home–also suggests that the Fair Housing Act of 1964 may also apply in some contexts. A failure to enforce civil rights laws against discriminating hosts in the sharing economy now poses a serious threat to blacks’ and others’ access to travel presently and in the future, but also to the “multiplicity of spheres” that underpin citizenship for these groups writ large.