Is Airbnb Violating the Fair Housing Act?

Airbnb announced that it will ban “the approximately 200 Airbnb listings in Israeli settlements in the West Bank” from its website. Airbnb explained that “many in the global community have stated that companies should not do business here because they believe companies should not profit on lands where people have been displaced.” Claiming to take into account the “conflicting views regarding whether companies should be doing business in [] occupied territories that are the subject of historical disputes,” Airbnb said its policy will help it avoid “contributing to existing human suffering.”

The company’s statement failed to answer some key questions: Why limit it to the Palestinian conflict with the Jewish state and no other disputes in the world? Why consider all Israeli settlements but no other parts of the West Bank subject to historical dispute? Why conclude that all Israeli settlements homes are sites of “displacement,” but no homes in Palestinian-controlled territories?

In response Airbnb’s announcement, Israeli politicians are weighing legal measures against Airbnb. Israeli and American lawyers will sue under their respective countries’ and states’ anti-boycott laws. Critics have rightly noted that the narrow focus of Airbnb’s “disputed area” policy on Israeli settlements alone strongly suggests antisemitism.

Unfortunately, as yet, few have taken note of the Airbnb’s probable violation of Title XIII of the United States’ Civil Rights Act of 1968, better known as the “Fair Housing Act” (FHA).

If Airbnb carries through on its announced ban, it will bar the listing of every single Jewish-owned and operated property in the West Bank. At the same time, its new policy will not bar the listing of any non-Jewish owned and operated property. This is an almost perfect example of a “discriminatory housing practice” forbidden by the Fair Housing Act.

While this is rarely remarked upon, the international campaign against Israeli settlements in the West Bank aims to enforce housing restrictions on Jews and only on Jews. Airbnb has not offered its own definition of the term “Israeli settlements in the West Bank,” but it is plain that, like other critics of the “settlements,” Airbnb means the term to refer to Jewish communities and Jewish-owned residences in the West Bank.

Approximately 15% of the West Bank’s population is Jewish. However, the Palestinian Authority has adopted a variety of measures to ensure that Jews cannot live in areas under Palestinian control. These measures include laws criminalizing the sale of land to Jews and using death squads to kidnap and murder those who sell land to Jews. Just last month, the Palestinian Authority jailed Issam Akel, an American citizen living in Jerusalem, based on the allegation that he sold a house he owns in the Old City of Jerusalem to Jews. Two days after Airbnb’s announcement, a PA court sentenced two Palestinian Arab men to 15 years of hard labor for land sales to Jews.

When people refer to Israeli settlements, they refer to those communities in the West Bank where Jews are permitted to live, or to individual housing units where Jews reside. Settlements is a term for Jewish housing, not a legal term. Opponents of the “settlements” refer to Jews who live in the ancient majority-Palestinian Arab city of Hebron or the newly established majority-Jewish city Ariel as “settlers,” but not their Palestinian Arab neighbors in those same cities. They call Jewish residents of east Jerusalem neighborhoods “settlers,” while refusing to apply the term to their neighboring Palestinian Arab residents of the same neighborhoods who also have Israeli citizenship. New West Bank towns are called settlements if and only if they are predominantly Jewish.

However Airbnb ultimately defines “Israeli settlements in the West Bank,” it will end up barring only listings by West Bank Jews. West Bank non-Jews will continue to list their properties with Airbnb. The new policy does not pretend to target plots of disputed land—only the ethnicities of vendors.

There’s little doubt that were it to delist only Jewish dwellings within a part of the United States, Airbnb would violate federal civil rights law. The Fair Housing Act of 1968 forbids a variety of discriminatory housing practices by American corporations like Airbnb, including denying access to listing services on the basis of race, religion or national origin. The Act also prohibits discrimination in providing rental-related services and brokerage, and in blocking negotiations about rentals. Airbnb’s announcement pledges to do all these forbidden acts.

Airbnb’s best hope for evading liability for its discriminatory housing practices relies upon a legal claim of extraterritoriality. Airbnb’s ban covers transactions that may take place in the United States, between American Jewish owners of property, and Americans who wish to rent them, on a US-based web site owned by a US company. However, the dwellings to be delisted are outside US territory. The Fair Housing Act doesn’t specifically say that covered dwellings must be in the US. Years of litigation about civil rights acts have established that the US civil rights laws only apply to extraterritorial discrimination if clearly intended by Congress. The courts will ultimately have to determine whether Airbnb’s brand of discrimination is truly extraterritorial.

Even if Airbnb can avoid federal liability on a theory of extraterritoriality, Airbnb may still be liable for violating comparable state civil rights acts that approach questions of territoriality differently. More importantly, focusing on the civil rights questions highlights the fact that Airbnb’s policy constitutes housing discrimination against Jews, even if technically legal. If Airbnb escapes liability because its housing discrimination is against Jews in foreign lands, it will remain hard-pressed to avoid the stench of bigotry, no matter how often it explains that discrimination against Jews reduces human suffering.

About the Author
The author is a professor at Bar Ilan University’s Faculty of Law and the University of San Diego Law School, a senior fellow at the Kohelet Policy Forum, and a visiting fellow at the Project on the Foundations of Private Law at Harvard Law School.
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