Current Affairs

Court rules website cannot ask sexual orientation question

Lucy Durnin April 4, 2008
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A roommate-finding site is prohibited from asking users to disclose their sexual orientation, a US appeals court has ruled.

Arizona-based website came under fire by The Fair Housing Council of San Fernando Valley and the Fair Housing Council of San Diego, who claimed the site violated the Fair Housing Act by demanding users list their sexual orientation as part of their application form.

In the latest dispute over whether anti-discrimination rules apply to the web, the US 9th Circuit Court of Appeals in San Francisco said the site, which offers more than 100,000 rental listings, was different from sites where people can voluntarily offer or withhold personal information.

In an 8-3 ruling, that partly overturns a lower federal court decision, the panel said that to inquire electronically about sexual orientation would be no different from asking people in person or by telephone if they were black or Jewish before conducting business.

According to OneNews, 9th Circuit Chief Judge Alex Kozinski wrote:

“Not only does ask these questions, it makes answering the discriminatory questions a condition of doing business.

“Websites are complicated enterprises and there will always be close cases where a clever lawyer could argue that something the website operator did encouraged the illegality.

“Such close cases, we believe, must be resolved in favour of immunity.

“Where it is very clear that the website directly participates in developing the alleged illegality, as it is clear here with respect to Roommate’s questions, answers and the resulting profile pages, immunity will be lost.”

Defence attorney Timothy Alger said in a statement:

“This decision represents a significant departure from what has been settled law across the country.

“We believe the government has no business regulating the selection of roommates or advertising for roommates.”

Three judges disagreed with the ruling, stating that the court was creating a dangerous precedent and future confusion for internet firms.

Having contrasted’s requests for information with search engines, such as Google, which could allow people to search for terms such as “white roommate”, Judge Margaret McKeown wrote:

“The majority’s unprecedented expansion of liability for internet service providers threatens to chill the robust development of the internet that Congress envisioned.

“ should be afforded no less protection than Google, Yahoo, or other search engines.”

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