Israeli company files discrimination claim under NY and CA law against Airbnb over ‘West Bank’ policy
“Claimant seeks (1) monetary damages; (2) an injunction directing the Respondent to cease engaging in discriminatory conduct; and
(3) pursuant to New York Executive Law Section 298-a(3), an order prohibiting Respondent from transacting any business in the State of New York.”
Airbnb recently announced that it no longer would list homes for rent in Jewish communities in Judea and Samaria (the “West Bank”).
Airbnb apparently singled out only Jewish-owned homes, and would continue to list homes in Arab communities in the West Bank.
Jews cannot live or own homes in those Arab communities in the West Bank because the Palestinian Authority and Palestinian terror groups consider it treason for an Arab to sell or rent to a Jew. So delisting homes in “settlements” is the functional equivalent of boycotting Jews living in the West Bank.
As discussed in our post about the delisting, Airbnb to boycott Jews living in the ‘West Bank’, this discriminatory action came after a pressure campaign on Airbnb:
Airbnb has been under a sustained pressure campaign by anti-Israeli activist groups to cease listing homes and apartments for rent in Israeli Jewish settlements in Judea and Samaria (the “West Bank”).
The area was ethnically cleansed of Jews by the Jordanians after Jordan captured the area in Israel’s War of Independence. The 1949 Armistice Line was where the fighting stopped, and left many historically Jewish areas, including the Jewish Quarter of the Old City of Jerusalem, in Jordanian hands. Israel recaptured the area in 1967.
Israeli Jews in those areas live in settlements because the regular housing market is not available. Palestinians are forbidden by the Palestinian Authority and terrorist groups, often under threat of death, from selling or renting to Jews. And given the long history of violence, including stabbings and shootings, directed towards Jews in those areas, it would be too dangerous.
The campaign against Airbnb was led by groups like the extremist U.S. Campaign for Palestinian rights, the misleadingly named “Jewish Voice for Peace,” and Code Pink. The obsessive-compulsive anti-Zionist Ariel Gold of Code Pink even disrupted Airbnb meetings.
The anti-Israel Human Rights Watch, which is leading a UN effort to blacklist companies doing business in the West Bank, was about to come out with a report slamming Airbnb, according to an HRW executive.
Airbnb has capitulated. It will boycott Jews living in the West Bank. While it couches its language referring to “settlements,’ that is just another way of saying Jews because Jews only can live in “settlements” in the West Bank.
Airbnb’s move created a firestorm of controversy, including a reported class action lawsuit in Israel, and condemnation by politicians in Israel and the U.S. Florida Governor-elect Ron DeSantis is promising action under Florida’s anti-BDS law.
Under Israel’s anti-BDS law, Airbnb may be subject to even greater sanctions.
Yet not only Israeli Jews are potentially harmed by Airbnb’s actions. Law Professor Eugene Kontorovich has an Op-Ed in the Wall Street Journal that points that Airbnb’s policies discriminate against Americans, Airbnb’s Anti-Israel Hypocrisy
Under Airbnb’s policy, an American Jew with a rental property in the West Bank is barred from listing it for rent on the website. But an American Arab is welcome to list his home a few hundred meters away, even though the Palestinian law forbidding real-estate deals with Jews carries a maximum penalty of death. That openly racist policy doesn’t trigger Airbnb’s delisting policy.
Airbnb admits the West Bank is the site of complicated “historical disputes.” Until 1948, the West Bank was part of the League of Nations’ 1922 British Mandate for Palestine, created to become a “national home” for the Jewish people. In 1947, the U.N. General Assembly passed a non-binding resolution suggesting the territory be divided into Arab and Jewish states, an idea the Arabs immediately shot down. Indeed, when the mandate ended and Israel declared independence in 1948, all its Arab neighbors invaded immediately. Jordan occupied the West Bank and massacred or expelled every Jew in the area, took their homes and destroyed their synagogues. Israel only regained the West Bank after Jordan foolishly attacked again in 1967. Many Jews then returned, including to lands Jews had purchased before Israeli independence.
Since then, the dispute has narrowed. Israel signed the Oslo Accords with the Palestinian leadership in 1993, leaving all settlements—the new and returning Jewish communities—under complete Israeli control. Jordan and Israel signed a peace treaty in 1994. To be sure, the Palestinians still demand the removal of Jews from the entire West Bank. But Airbnb’s policy applies only to the Israeli—primarily Jewish—communities in the disputed territories.
Israeli cities in the West Bank are open to any lawful resident of Israel, including Arabs. By contrast, any Jew who enters the West Bank’s Palestinian towns risks his life.
In what may be the first salvo in a flood of domestic U.S. legal actions, an Israeli company has filed an arbitration claim seeking damages and an injunctive relief.
Bibliotechnical Athenaeum – Experienced anti-BDS Litigant
The arbitration against Airbnb was filed by Bibliotechnical Athenaeum. That name may be familiar to Legal Insurrection readers because we previously covered a lawsuit in New York State Court against the National Lawyers Guild for alleged discrimination under New York law based on National Origin.
The prior lawsuit alleged that NLG refused to accept an advertisement from Bibliotechnical to be placed in an NLG Dinner Journal for an event. Bibliotechnical alleged that the ad was rejected because Bibliotechnical is an Israeli company. Attempts by National Lawyers Guild to get the case dismissed were denied by the Court. In one of its decisions, the court discussed the breadth of New York State and New York City anti-discrimination laws:
In addition, both the State’s and the City’s Human Rights Laws are extremely broad in scope in terms of the class of “persons” they seek to protect from discriminatory acts. The New York State Human Rights Law provides (Executive Law §§ 296(2)(a), 297(9)):
It shall be an unlawful discriminatory practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation, resort or amusement, because of the race, creed, color, national origin, sexual orientation, military status, sex, or disability or marital status of any person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof.
Any person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction for damages . . . and such other remedies as may be appropriate. . . .
The term “person” includes “one or more individuals, partnerships, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.” Id. at § 292(1).
The New York City Human Rights Law similarly provides (NYC Administrative Code 8-502):
[A]ny person claiming to be a person aggrieved by an unlawful discriminatory practice . . . an act of discriminatory harassment or violence . . . shall have a cause of action in any court of competent jurisdiction for damages, including punitive damages, and for injunctive relief and such other remedies as may be appropriate.
The term “person” includes “one or more natural persons, proprietorships, partnerships, associations, group associations, organizations, governmental bodies or agencies, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.” Id. at 8-102(1).
Arbitration Claim Against Airbnb
Now Bibliotechnical Athenaeum has brought a claim against Airbnb regarding the West Bank policy, and is represented by David Abrams, the same lawyer representing it in the suit against the National Lawyers Guild.
The claim was filed at the American Arbitration Association, as required under Airbnb’s dispute resolution terms (see below).
1. This is a claim for unlawful discrimination under the New York City and State Human Rights Law. In the alternative, Claimant seeks relief under the Unruh Civil Rights Act. As set forth in more detail below, Claimant seeks (1) monetary damages; (2) an injunction directing the Respondent to cease engaging in discriminatory conduct; and (3) pursuant to New York Executive Law Section 298-a(3), an order prohibiting Respondent from transacting any business in the State of New York.
Here are some other pertinent allegations as to the parties and controversy:
2. Claimant Bibliotechnical Blue & White Ltd. (“Claimant”) is an Israeli corporation which is registered in Gush Etzion, in Judea & Samaria commonly referred to as the “West Bank.” Claimant resides in the State of New York, County of New York and is Jewish-owned.
* * *
7. The areas where Jewish people are permitted to own and lease real estate are commonly referred to as “Israeli Settlements.” In the remainder of the West Bank, which is under Arab control, it is illegal to sell or lease land to a Jew (or a Jewish-owned company). Indeed, selling land to a Jew is a capital offense.
8. Thus, if a Jewish person or corporation wants to buy or lease land in Judea and Samaria, it must be done in the so-called “Israeli Settlements.”
* * *
12. Moreover, Respondent’s policy is targeted only at Jewish areas of Judea and Samaria and not Arab areas. Further, since Jewish possession of land in Arab areas is forbidden, the net effect of Respondent’s policy is to restrict rights to Jewish people and/or Israeli people and nobody else.
13. In effect, Respondent has adopted and endorsed the anti-Semitism of Palestinian Arab policy.
14. Claimant recently registered as a user of Respondent’s services. This was done in the City of New York. Claimant would like to purchase or purchase or lease property in Judea & Samaria and list it with Respondent’s services using computer services in the City of New York. Thus, Respondent’s policy is discriminatorily preventing Claimant from using Respondent’s services in the City of New York.
The legal claim allegations are as follows:
V. Causes of Action and Demand for Relief
Count One: Violation of New York Law and/or California Law
18. Respondent is a provider of public accommodation in that it offers services to the
public in the City and State of New York.
19. Respondent has violated the New York City and New York State human rights
laws by discriminating on the basis of religion, national origin and/or citizenship and also
by engaging in a discriminatory boycott.
20. In the alternative, Respondent’s conduct is a violation of the Unruh Civil Rights
21. Moreover, Respondent’s conduct is unlawful insofar it has announced a
discriminatory policy regardless of whether that policy is actualy enforced.
Airbnb’s terms of service updated as of April 16, 2018, require arbitration and prohibit class actions:
Please note: Section 19 of these Terms of Service contains an arbitration clause and class action waiver that applies to all Airbnb Members. If your Country of Residence (as defined below) is the United States, this provision applies to all disputes with Airbnb. If your Country of Residence is outside of the United States, this provision applies to any action you bring against Airbnb in the United States. It affects how disputes with Airbnb are resolved. By accepting these Terms of Service, you agree to be bound by this arbitration clause and class action waiver. Please read it carefully.
Section 19.2 provides, among other things, that “The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.” This would seem to encompass injunctive relief, since 19.5 makes exception only for “emergency injunctive relief,” which plaintiff does not seek.
19.5 Exceptions to Arbitration Agreement. You and Airbnb each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
Section 19.9 expressly gives an arbitrator the power to grant injunctive relief, though “only to the extent necessary to provide relief warranted by the claimant’s individual claim”:
19.9 Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
This seems to put Airbnb in an interesting legal situation, where its ability to conduct business could be barred by a single arbitrator. Abrams provided this statement to me:
“I filed a demand for arbitration because Airbnb’s terms of service have an arbitration provision. Therefore a neutral arbitrator will determine if Airbnb has engaged in unlawful discrimination and may be enjoined.”
No Response Yet From Airbnb
I reached out to Airbnb’s press office and General Counsel for comment on the Statement of Claim, but as of this writing have not received a response.
We will continue to update you as the case proceeds.
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