Judge Tells Court to Toss Airbnb Bias Suit Brought by Non-Member

Members of Airbnb Inc. can arbitrate discrimination claims against the short-term rental platform. But a non-member who tried to press her discrimination complaint in court may be out of luck.

Patricia Harrington, an Oregon black woman, sued Airbnb Inc. in federal court on behalf of all black residents in the state who have never been site members. Harrington says she would like to join, but only if Airbnb ceases practices that permit hosts to deny booking requests to black people based on their profile photos.

The problem? A magistrate judge said Harrington wrongly based her complaint on discrimination that hasn’t yet taken place.

Magistrate Judge Youlee Yim You Jan. 25 recommended the U.S. District Court for the District of Oregon dismiss the case because the state law Harrington relied on doesn’t support claims for “anticipated discrimination.”

Oregon’s anti-discrimination law provides that any person who has been discriminated against can bring a claim against a place of public accommodation. You said the plain language of the statute makes clear that it applies only to alleged instances of discrimination that have already happened. Harrington alleged discrimination against others, but not against herself because she hasn’t joined the site.

Josh Ross, counsel for Harrington and an attorney at Stoll Berne, told Bloomberg Law that he will file an objection to the judge’s recommendation.

“We believe that Airbnb’s policies, and its refusal to change them, constitute discrimination, and we are confident that anyone who has experienced the humiliation and shame of unequal access would agree,” he said.

An Airbnb spokesperson didn’t immediately respond to a Bloomberg Law request for comment.

In a previous case, Gregory Selden, a black man from Virginia, sued Airbnb after a host allegedly rejected his booking request but accepted one from a fictitious white man.

A federal district court in Washington said Selden had to arbitrate his claim pursuant to an arbitration clause in Airbnb’s terms of service, which he agreed to when he signed up to be a member.