Anti-Discrimination or Anti-Information?

Timothy Kincaid

April 4th, 2008

Living expenses in Southern California can be very expensive. Finding a two bedroom apartment in the West Hollywood area will run you at least $2,000 per month. So often young single men and women have roommates.

One common way to find a roommate is to register with a service that allows you screen for an ideal roommate. This way those needing someone to share the rent could find someone needing a place to stay.

In the past, members could choose various attributes of the person they wanted to room with: smoker or non-smoker, male or female, gay or straight, and within age ranges as well as where they wanted to live and how much they wanted to pay.

However that may all change. One such service, Roommate.com, had been operating happily along when in 2003 they were sued by the Fair Housing Councils of the San Fernando Valley and San Diego. They claimed that allowing member to search and filter by such things as sex or orientation was facilitated them in discrimination.

Today the 9th Circuit decided 8-3 that Federal protections do not shield roommate services from being liable to anti-discrimination laws.

The judges said a site called Roommates.com may be brought to trial for possibly violating anti-discrimination laws because it requires users to provide information about gender, sexual orientation and whether they have children, and then uses the information to screen people for matches.

“A real estate broker may not inquire as to the race of a prospective buyer, and an employer may not inquire as to the religion of a prospective employee,” Chief Judge Alex Kozinski wrote for the majority. “If such questions are unlawful when posed face-to-face by telephone, they don’t magically become lawful when asked electronically online.”

Some will find this to be a fair application of law reasonably determined to shield minorities for discrimination. Others, namely gay persons looking for a roommate that isn’t going to hassle them or straight women who don’t want to live alone with a straight man, may find it to be counterproductive. And others are concerned as to how this decision might impact other online services that allow members to search by attributes.

Roommates.com may appeal to the US Supreme Court.

Eric

April 4th, 2008

what does this mean for gay roommate matching services?

Emily K

April 4th, 2008

I think people have every right to know the sexual orientation of their potential roommate. That’s ALWAYS something I discuss to make sure it’s not uncomfortable for them. It’s easy for someone to jump to the conclusion that a homophobe would screen out gay candidates and be a bigot – but hell, why would a gay person WANT to live with a homophobe?? And I especially agree with women being uncomfortable living with straight men, being a woman myself. Maybe racists and bigots would be better off screening those they despise from potential roommates. Those they despise would be better off without them.

David

April 4th, 2008

Ah, the Ninth Circuit Court of Appeals…The most reversed circuit court of them all.

Their ruling does demonstrate the absurdity of not taking non-discrimination matters one issue at a time.

It also points out the problems of applying non-discrimination rules to private individuals as opposed to government agencies.

Michael

April 4th, 2008

After reading the linked article, I don’t think this decision will cause any long term trouble for gays interested in avoiding homophobic roommates. Apparently, while it is illegal for the site to demand information such as race, sex, and orientation, there is no legal problem with allowing a user to volunteer that information within their public profile. Therefore avoiding anti-gay types should be as simple as listing one’s orientation in their profile.

That said, I never would have imagined a judge applying anti-discrimination laws to an area of life as private as residency. Seriously, if a girl wants to live with another girl or a straight guy wants to live with another straight guy is that really such a problem? Has our freedom of association really fallen so far such that we can’t be discriminating even when choosing with whom we should live? This judge is nuts.

Stefano

April 4th, 2008

Apparently, while it is illegal for the site to demand information such as race, sex, and orientation, there is no legal problem with allowing a user to volunteer that information within their public profile.

Michael, that was my understanding of the new ruling as well. The court did not see a problem with volunteered information. The problem was that roommate.com required the information. There continues to be no problem if in your volunteered information, or in your personal screenings of possible matches you volunteer or ask the information. It just can’t be required information by a business offering a finders service.

Stefano

April 4th, 2008

BTW:

It also points out the problems of applying non-discrimination rules to private individuals as opposed to government agencies.

I’m not sure how to interpret this. So you’re saying that any private business should be allowed to discriminate against groups of people? Because the court ruling had nothing to do with the decisions of private individuals, it only dealth with business entities. In that respect, they were following the same application of law they would use for racial or religious anti-discrimination measures. In fact, the same measures people are asking to be written into law with the Employment and Housing non-discrimination bills that are being passed.

Stefano

April 4th, 2008

Oh. Only one other comment.

It seems like a very simple “fix” to me for roommate.com and other services that allow users to search for “personal attributes”.

Simply make that information an opt in or out option rather than a requirement on the part of the entity running the service, in this case roommate.com. Much like opt in or out options to receive advertisements via email when you register with an online service.

Jason D

April 5th, 2008

what about online dating services? They require some of that information in order to post a profile. This is all very interesting.

Stefano

April 5th, 2008

Jason D:

That was what I was wondering. Why the court would rule this way with regard to roommate.com, yet did not rule against E-Harmony for refusing to take ads from gays. I don’t really remember, but I thought someone had tried to sue e-harmony but lost.

Ephilei

April 5th, 2008

Stefano:

There’s no law against refusing clients for advertising based on what they are advertising. Box Turtle should get to say they don’t want Exodus advertising on their site. Housing is different – it’s a primary need like food and clothing.

This was a good ruling. While this particular situation isn’t hurting anyone, there could be equivalent services that do. Say a website like this expanded into letting landlords peruse people’s profiles who you don’t have a reason to tell them your sexual orientation.

Sexual orientation, like gender identity, race, or religion, can be volunteered. Being trans, I would definitely volunteer my gender identity to a prospective roommate (I have before). All the site has to do is change their profile from “required” to “optional” and there’s no problem.

Stefano

April 5th, 2008

There’s no law against refusing clients for advertising based on what they are advertising.

I’m not sure about the details of that as to where the lines are drawn. For example, printing companies have been sued by the ACLU for refusing to print fliers for the KKK. “Christian” printing companies have been sued for refusing to do business with gay clients.

I do think there is a distinction drawn between that and private entities such as Box Turtle or media companies, for example, having it within their right to refuse advertisers.

I’m not attempting to dispute any points here, just acknowledging my ignorance on the subject.

All the site has to do is change their profile from “required” to “optional” and there’s no problem.

Yes. I agree with this completely.

The court was clear in making the distinction

“Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business.”

“Where it is very clear that the Web site directly participates in developing the alleged illegality — as it is clear here with respect to Roommate’s questions, answers and the resulting profile pages — immunity will be lost.”

A Roommates.com section allowing users to add additional comments of their choosing is immune from liability as outlined in the 1996 Communications Decency Act, the San Francisco-based court found.

Stefano

April 5th, 2008

Maybe you can clarify this further…

There’s no law against refusing clients for advertising based on what they are advertising. Box Turtle should get to say they don’t want Exodus advertising on their site.

The distinction here, as I see it, between something like Box Turtle, or something like a TV outlet or magazine, etc., refusing advertisements contrasted with e-Harmony, is that neither Box Turtle nor the TV outlooks or magazines, etc., provided service is advertisment, their product or direct service is something different that may or may not be suplementally supported by advertisers.

E-harmonie’s service technically is not advertising. The service provided is “couple’s matching” for a lack of a better way of putting it.

Now, arguably, the form that service takes could be be said to be an “advertisement”, but then that line of argument could also have been made for Roommate.

So I’m still unclear on what distinguishes the two.

Joel

April 5th, 2008

What they should really ask is:
Are you a homophobe?
Are you racist?
Associate with the KKK?
DO you discriminate against any religion?

I wonder.. if asking if their gay, unconstitutional or disciminatory, then asking the questions above, the same?

David

April 5th, 2008

Stefano,

The Court clearly ignored the reason for asking these questions in the first place: the preferences of the renter.

Stefano

April 5th, 2008

David:

The court ruling has no effect on volunteered information. The renter or the person looking for a roommate can still state their preferences. Roommate can just no longer be required to provide the information in order to do business with Roommate.

All Roommate has to do is make the information optional and still provide the user search options for that or any other “personal attribute” that’s voluntarily provided.

David

April 6th, 2008

Stefano,

That justs makes my point.

Roommate wasn’t refusing to do business with anyone because of race, sex, etc. It was simply providing a particular service: matching people with a roommate of the type they want.

The Court’s ruling ignores this distinction.

stefano

April 6th, 2008

This is the distinction I see:

Roommate: “because it requires users to provide information about gender, sexual orientation and whether they have children, and then uses the information to screen people for matches.”

Roommate was doing the screening and matching.

With the voluntary information, the users would be doing the searching and screening.

I’m not saying that Roommate in practice was being discriminatory. But that I understand how the court reached its decision.

I wouldn’t expect this to actually go to trial unless there was plausible cause that discrimination was occuring.

But I don’t think the court was looking at this as just a single entities practices, but the bigger picture.

In practice, if the information is made voluntary, I still don’t see that impacting the function of the service much on the side of users.

stefano

April 6th, 2008

“I wouldn’t expect this to actually go to trial unless there was plausible cause that discrimination was occuring.”

Let me try to clarify this a bit more.

The court wasn’t ruling that Roomates *was* being discriminatory.

Basically, the outcome of the court decision was a ruling that entities such as Roommates could be held liable, that is such sites would loose their immunity.

This opens the door for when such entities are being discriminatory in practice they can now be prosecuted, whereas prior to the ruling the could not.

stefano

April 6th, 2008

Afterthought…

“With the voluntary information, the users would be doing the searching and screening.”

I’m not even sure this would be necessary. I can foresee one of two things regarding this:

1. Roomate continues to provide the same type of matching they did previously, only the matching will be done via a combination of allowed required info (e.g., perhaps, income, location, number of bedrooms; i.e. non personal attributes) in combination with the voluntary info supplied by users… OR

2. Roomate does a first level match for those who sign up with then, then users do a second level search within those matchs to refine for personal attribution preferences.

I would exect the first scenario to be the more likely one.

David

April 7th, 2008

This case is the result of overreaching by the Fair Housing Councils of the San Fernando Valley and San Diego. Apparently they have too much time on their hands.

These councils clearly have no respect for freedom of association: “They claimed that allowing member to search and filter by such things as sex or orientation was facilitated them in discrimination.”

So what? We have a perfect right to discriminate in choosing roommates!

Timothy Kincaid

April 7th, 2008

Guys,

Some clarification.

I’ve not used Roommate.com but I am familiar with a similar product. The service did not do the matching, it only provides listings which users can search. And as I understand it, Roommate.com does not do matching either.

They allowed customers to use that field as a search variable such that Joe Renter could search for listing only of gay men, only of straight women, or various combinations, as well as other variables such as price, size, location, etc. It would then provide those members that fit the search criteria.

The court, if I understand correctly, found the discrimination to be occuring by the end user but objected to the rental service facilitating the customer’s discrimination.

If a potential roommate eliminated choices because they have children, the court can’t control that. But it can blame Roommate.com for making it easy.

As for going to court, that’s what this ruling determined: that it can go to trial.

stefano

April 7th, 2008

The service did not do the matching, it only provides listings which users can search. And as I understand it, Roommate.com does not do matching either.

Hmmmm. Ok. Maybe I misread something. I was under the impression that Roommates themselves provided a first level match from using required information that users could then refine with further searches.

I did catch the further clarifying reasonings of the court regarding an entity’s indirect contributions by *requiring* said information as a term of doing business with them.

As for going to court, that’s what this ruling determined: that it can go to trial.

Yes. I’d agree with this. That the ruling made a decision that such entities were not immune from prosecution.

I’m unsure, however, if Roommates will actually be taken to court unless their is plausible evidence that there was discrimination. That’s why I spent so much time mentioning “solutions” Roomates could take to avoid that regarding Roommates no longer *requiring* such info, but making it voluntary.

I also think caution needs to be used in not conflating the free association rights of individual citizens with the business practices of a business entity.

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