Anti discrimination ruling leaves more questions than answers

The 9th U.S. Circuit Court of Appeals has issued a ruling in the Roommates.com housing discrimination case, finding that a website may be found liable for violating fair housing laws by matching roommates according to gender, sexual orientation and parenthood. The 8-3 ruling by the San Francisco based appeals court said that Federal law protecting websites "was not meant to create a lawless, no-man's land on the Internet."

Barring an appeal to the US Supreme Court, an option which the owners of the site have said they would consider, Roommates.com can now be brought to trial for allegedly violating anti-discrimination laws. The site requires users to provide information about their gender, sexual orientation, and their parenthood status. The site then uses that information to screen people for matches.

Chief Judge Alex Kozinski, wrote in the opinion for the majority that, "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. If such questions are unlawful when posed face-to-face by telephone, they don't magically become lawful when asked electronically online."

Federal law has typically maintained somewhat of a "hands off" policy and has tried to nurture Internet expansion by protecting websites from liability. The three dissenting judges in this case said that the ruling represents an "unprecedented expansion of liability" that could chill the Internet's growth. The dissenting three also pointed out that the decision was contradictory to rulings by five other federal appeals courts and threatened protections for all interactive sites.

In my humble opinion, this ruling really leaves us with more questions than answers. While I understand that it is truly prejudicial to deny someone housing (meaning to refuse to rent to or sell to an individual) solely based on their race, gender, sexual orientation, religion, or disability, I have a bit of trouble with this notion when it comes to a roommate matching service.

What we are talking about in this case is preferences, i.e. who you would prefer to room with, and not absolutes. Because someone would prefer to room with a member of their own gender, race, sexual orientation, it is not necessarily tantamount to overt discrimination.

Judge Kozinski may be comparing apples to oranges in this case, and if so, Roomates.com may win on an appeal to the Supreme Court. Because real estate brokers and employers are bound by existing law not to ask certain questions, but regular individuals are allowed to choose whomever they want to room with, even if it involves the disgusting practice of excluding someone because of who they are. The fact that an online service facilitates matching individuals based on existing preferences doesn’t change that.

The question then becomes whether the website itself is facilitating housing discrimination, and that is a matter of hotly debated opinion. While one side may view Roommates.com’s users to provide information about their gender, sexual orientation, and their parenthood status as an invasion of privacy and a precursor to discrimination, the same might be said of sites like prideroomates.com, which finds roommates specifically for gay individuals or christian-roommates.com, which finds roommates specifically for Christians.

As I have mentioned before in my posts, in some cases, diversity itself can be divisive, because in our quest to unite ourselves through what we have in common, we may be alienating (or even discriminating against) those that are not like us. In that sense, the majority judges may be correct.

Either way, should this ruling hold up it opens up a host of questions on issues such as what really can and should be considered discrimination, in what forum freedom of speech is really protected, and whether any site or business with the specific goal of uniting like individuals for any purpose should be allowed. I just hope that as we seek the answers to these questions, we can find answers that work for all of us.