Click on the Menu for Fair Housing Act Violations

Yesterday the U.S. Court of Appeals for the 9th Circuit ruled that Roommate.com is not immune from housing discrimination claims based on preferences expressed by people who advertise on the site. Under federal law, a provider of "an interactive computer service" is not liable for material posted by customers, unless it participates in creating the material. A three-judge panel ruled that Roommate.com left itself open to liability by providing online forms that include options for prohibited preferences such as gender and sexual orientation. The case now goes back to the trial court, which will determine whether the service violated the Fair Housing Act.

Beyond the question of vicarious liability, as Eugene Volokh noted in a post Brian Doherty cited yesterday, is the stupidity of allowing people seeking roommates to discriminate but prohibiting them from stating their preferences. The 9th Circuit ruling is here. Katherine Mangu-Ward's reason article on the case is here.

Comments

fyodor | May 16, 2007, 12:16pm | #

the stupidity of allowing people seeking roommates to discriminate but prohibiting them from stating their preferences

Reminds me of that scene in Monty Python's Meaning of Life where the cleaning woman says, "at least I don't work for Jews" (which cracked this Yid up), and then the waiter gets right up to the camera so you couldn't see the cleaning woman anymore and say, what does he say? Something like, "No, no, no racism here, no, no racism here!"

Lamar | May 16, 2007, 12:19pm | #

The "nutty Ninth" strikes again.

Warren | May 16, 2007, 12:20pm | #

That's it. I'm taking my corn squeezings intravenously starting now.

You got me doc, do you want to shoot me now, or wait till you get home?

Cracker's Boy | May 16, 2007, 12:22pm | #

"left itself open to liability by providing online forms that include options for prohibited preferences such as gender and sexual orientation"

So, if they leave off check boxes and radio buttons that indicate gender/sexual orientation/religion/etc preferences and just leave a big ol' box for free form comments, would that satisfy the prohibition against "creating the material" by making it "material posted by the customer"? That way, members looking for roommates could simple use a "search" feature within roommates.com to find text-matches of the preferences?

I am curious, yellow.

CB

thoreau | May 16, 2007, 12:31pm | #

I was just going to ask the question that CB asked. If the application of the law hinges on free response vs. multiple choice, that seems a bit silly.

jimmydageek | May 16, 2007, 12:31pm | #

I haven't seen roommate.com's website, but how does "preferences" equate to "discrimination" in this case?

I mean, (if I were using that service and not already engaged, as I am now) I would prefer a hot-looking girl aged 24-30 with no boyfriend. If they had a check box for that preference I would click it in a heartbeat, but that doesn't mean I would not consider any other applicants.

Reinmoose | May 16, 2007, 12:38pm | #

*bigot filling out form on Roommate.com looking for a roommate"

la la la
Let's see... No smoking, check, no pets, check, no assault weapons convictions, check... oh look! Since Roommate.com planted the idea in my head that maybe I wouldn't want a gay person as my roommate, I will check this box indicating that I would prefer that he not be. Otherwise, however, I would have been completely and totally open to the idea.

biologist | May 16, 2007, 12:49pm | #

to take jimmydageek's comment one step further, how much longer until it's illegal to discriminate on date search websites like match.com?

no fatties = jailtime?

at least human reproduction will finally meet one of the assumptions of the Hardy-Weinberg equilibrium model, that we have random mating rather than assortative mating, and we'll be able to test the model's predictions.

M | May 16, 2007, 12:54pm | #

Will a box labeled "I solemnly affirm that I want/don't want a Cretan room-mate" be prohibited?

juris imprudent | May 16, 2007, 12:55pm | #

the stupidity of allowing people seeking roommates to discriminate but prohibiting them from stating their preferences

That which is not allowed is prohibited. [And they thought it was only satire]

The "nutty Ninth" strikes again.

As much as I agree with that sentiment, you have to remember that Congress gives them such rich material to work with.

Shelby | May 16, 2007, 1:24pm | #

CB, thoreau:

Yeah, that's pretty much what it looks like. If the customer posts it without guidance, the host isn't liable. Though I'd think this might be vulnerable to some sort of First Amendment challenge (free speech and, if it were read as broadly, freedom of association).

bigbigslacker | May 16, 2007, 1:32pm | #

fyodor, it went something like:

The woman was cleaning puke and guts off the floor and said ~"life is like a game. Sometimes win and sometimes you lose, but at least I don't work for Jews."

Then the waiter dumped the obese exploding man's puke bucket on her head while he apologized to the camera.

keith | May 16, 2007, 1:58pm | #

CB, Thoreau, Shelby,

From what I know of the cognitive science behind user interface design, I'm going to go with the court ruling on this. When the application or website's designer chose to put in the radio buttons or checkboxes or other interface widget, they were imposing their cognitive map and constraining all of their users to make choices within the designer's top-down imposed workflow. Now, I'm sure that Roomate.com's software engineers researched and considered the task that their users would set out to perform, and that includes filtering out prospective roomates, but they absolutely injected their own assumptions and models into all user tasks.

I have a tangental citation. It's not directly pertinent to this case, but the application design does drive actual user use:
http://www.useit.com/papers/noncommand.html
Communications of the ACM 36, 4 (April 1993), 83-99

Beyond that, Jacob might say "the stupidity of allowing people seeking roommates to discriminate but prohibiting them from stating their preferences" but that sounds a lot more like a working definition of a polite society than that old Heinlein chestnut.

Finkelstein | May 16, 2007, 3:26pm | #

Huh?

Sean | May 16, 2007, 3:32pm | #

In such an intimate personal decision such as who we would prefer to live with under the same roof this is stupid. The law should not apply to this and I thought if you were only dealing with a couple "units" it didn't.

Cracker's Boy | May 16, 2007, 3:50pm | #

Disclaimer: Havent' been to the website. Don't need a roommate. Got a wife.

If I ran roommates.com, I would have a series of lines with 4 radio buttons on each line, followed by a text box. The radio buttons would be "Must Have", "Prefer", "Prefer Not" and "Reject" and the applicant-seeking-roommate would select the desired level of interest then fill in the text box with "Jewish" or "Smoker" or "Drinker" or "Catholic" or "Muslim" or "Gay" or whatever. Then the text in the box becomes member posted material and is free from restriction. An applicant-looking-to-be-a-roommate would do the same thing, and the website would simply match characteristics. Maybe a spell check on the text box would be provided, to make sure "homosexual" and "homasexule" get appropriately matched.

I don't know. I'm just sayin'.

CB

bubba | May 16, 2007, 3:57pm | #

This isn't as nutty is portrayed. It's not that it's ok for individuals to discriminate in their rental agreements, it's whether or not Roommate.com is an accomplice by making it easier.

Given that race is a protected classification, it's not hard to imagine that it's illegal for Roommate.com to categorize its listings by race. Whether or not it's legal for individuals to make such decisions.

The transparent ability for a hiring manager to avoid certain classes of people does not make it legal for him to specify said preferences in a job posting.

t | May 16, 2007, 4:40pm | #

keith,

A "polite society" can include statements like "I don't want kids living in my apartment" and "I'd prefer to share my kitchen with someone who shares my dietary strictures".

Sean,

The Fair Housing Act allows someone renting out a part of their own residence to discriminate, but they still can't advertise their preferences.

bubba,

You can't be an "accomplice" to a legal act. But, the users of Roommates.com are breaking the law by advertising preferences. Normally an online service provider isn't liable for the actions of its users. But, Roommates.com required its users to express certain preferences.

It is illegal for a hiring manager to discriminate on the basis of (e.g.) race. It's just harder to prove without advertising.

juris imprudent | May 16, 2007, 8:49pm | #

The Fair Housing Act allows someone renting out a part of their own residence to discriminate, but they still can't advertise their preferences.

Thus the Ninth isn't so nutty - but Congress???

So, I have a right to free association, and I have a right to free speech, but I don't have the right to advertise my preferences.

The only reason to condemn the 9th is that they didn't find this beast unconstitutional.

dj of raleigh | May 16, 2007, 11:33pm | #

Person seeks person to share one room, one bed, one bath apartment. Race, religion, creed, color, national origin, gender/sexual preference, or disability (including bedwetting, serious mental illness, alcoholism) doesn't matter. Dogs, cats, birds, snakes, and children (as many as you have) are OK. I trust it doesn't matter to you.
Libertarians need not apply!

Jon C Jackson 3 | May 17, 2007, 3:59pm | #

Many local governments actually MANDATE housing discrimination, but I guess the discrimination basis ( things like familial status, student status,etc)tey use aren't protected classes.