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Israeli company files discrimination claim under NY and CA law against Airbnb over ‘West Bank’ policy

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.”

https://www.facebook.com/airbnb/videos/302972220430074/

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 West Bank is disputed territory. For a history of why the settlements are not illegal and the area is not illegally occupied, see our prior posts.

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).

The Statement of Claim (pdf.)(full embed at bottom of post) seeks, among other things, an injunction barring Airbnb from transacting business in the State of New York:

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
Act.

21. Moreover, Respondent’s conduct is unlawful insofar it has announced a
discriminatory policy regardless of whether that policy is actualy enforced.

Why Arbitration?

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.

—————————–

Bibliotechnical Athenaeum v. Airbnb – Statement of Claim by Legal Insurrection on Scribd

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Comments

Sounds like a good idea to me!

Hey, wait, can’t a PRIVATE company like Twitter, Facebook, Google, etc., ban who they want and silence who they want? Huh? I hear that argument all the time (which I support…freedom of association and Private Property)….so if Airbnb wants to have this policy, that is their RIGHT. No?

Don’t like it? Do business with someone else.

Oh, I think it is not wise to make your first demand the following:

““Claimant seeks (1) monetary damages;”

    Funny, we said the same thing about bakers and photographers. “Public accommodation” means the same for everyone.

    “Some animals are more equal than others.”

      Richard Grant in reply to SDN. | November 26, 2018 at 4:53 pm

      “Public Accomodation” is a farce and very dishonest. Sounds good but is nothing but slavery.

      One man’s restaurant is not your accommodation. It is his property and freedom of association should be paramount, if we respect the sanctity of the individual over communal society. Societies don’t have “rights”, only the individual does.

      To force another to “serve” you, be it an internet company, restaurant or hotel, makes you just a Slaver.

      Don’t like the “racist” restaurant? Go to another you do like. You are fee to discriminate and so are others. That is the basic axiom of “freedom”. Free to choose. Without that we are all slaves to each other and the Massa is Government.

    Actually I think housing and accommodations are part of the protected equal rights clauses both federally and most, if not all states.

    Your “logic” is completely upside down.

    Private companies are not bound by the first amendment. “Congreſs shall make no law”, but they are not Congreſs. They have the right to censor speech on their property to their heart’s content. Therefore all “free speech” claims against Twitter, Facebook, and Google are bogus.

    Nobody has ever suggested that private companies are exempt from anti-discrimination laws. If Twitter were to close someone’s account because of their race, sex, age above 40, disability, etc., they would be breaking the law. If Twitter is located in a place where discrimination on the basis of sexual orientation is against the law then the same would apply if it closed someone’s account because of that. Discrimination on the basis of political opinion is perfectly legal in most places, and even where it is not Twitter can still ban the use of its service to express opinions it doesn’t like.

    Oh, and what is wrong with making the first demand “Claimant seeks (1) monetary damages;”? That is what a lawsuit is for, after all.

      And I say that you are discriminating on the basis of my Christianity…. and I’ve got a whole Twitterverse showing that you kick people expressing Christian beliefs off when exactly equal expressions by non-Christians (atheist and Islamic, especially) are allowed to stay. Prove you aren’t discriminating on the basis of religion.

      The same applies to “racist” expressions by whites and non-whites. I say you are discriminating by race. Prove you aren’t.

        Milhouse in reply to SDN. | November 27, 2018 at 1:13 am

        They don’t have to prove they aren’t. You have to prove they are. And the truth is they’re not. The only basis on which they are discriminating is whether they like the opinion expressed. You know as well as I do that they don’t care who expresses it. They block Candace Owen and GayPatriot for disagreeing with them, and they don’t block straight white christian males who agree with them.

    The entire United States is covered by the Federal Civil Rights Act of 1964, which prohibits discrimination by privately owned places of public accommodation on the basis of race, color, religion or national origin. The federal law does not prohibit discrimination based on sexual orientation, so gays are not a protected group under the federal law.

    MattMusson in reply to Richard Grant. | November 27, 2018 at 9:10 am

    Doesn’t matter. The Judge will rule either:

    The Claimant lacks standing
    The Claimant cannot prove injury
    The Court lacks Jurisdiction

    These are the standard pussy excuses that Judges use when they don’t want to make a controversial ruling.

    JusticeDelivered in reply to Richard Grant. | November 27, 2018 at 10:13 am

    How about a Jewish entrepreneur start a competing service and start taking Airbnb business? That would be funny.

Israeli Jews in those areas live in settlements because the regular housing market is not available.

As I wrote last time, this is not true, for two reasons:

1. The peculiar usage of the word “settlement” in this context. In the English language a “settlement” is either a small village or a recently established one. While some of the Jewish residents of Judæa, Benjamin, and Samaria do live in small settlements, most of them live in large and well-established villages, in towns, and in cities. Nowhere else in the world is the term “settlement” applied to a city of 50,000 people.

But in the context of these territories, and these territories only, “settlement” is used as if it meant “Jewish home”. Even a single Jewish apartment building in the middle of a major city (e.g. Hevron, or Arab neighborhoods of Jerusalem) is referred to that way. Therefore Jews in these territories cannot live anywhere but “settlements”; wherever they live is by definition a “settlement”.

2. More importantly, though, the reason Jewish residents (except in Hevron) live in their own villages, towns, and cities rather than in Arab ones is not because the Arabs refuse to rent or sell to them (though this is true) but because they don’t want to live there, for several reasons, but primarily because they know they would not be safe there. Indeed, many “settlements” are on land Arabs did sell, despite everything.

The case against AirBNB has nothing to do with the Arab refusal to sell land to Jews, and boils down to one point: AirBNB will happily do business with an Arab living in an Arab village, but not with a Jew living a few hundred yards away in a Jewish village.

The claim that it’s not boycotting the Jew but the village is transparent, since the only thing that distinguishes the two villages is that one is Jewish and the other is not. Also I assume this policy applies in the predominantly Arab neighborhoods of Jerusalem, where it will do business with an Arab but not with a Jew who lives literally next door.

I know a couple of Caribbean islands that would like to have Airbnb put them on a banned list.

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