App Based Discrimination

[Taxing Matters]

In my eyes, things like this are a step BACKWARDS in the ways of civil rights and equality.

Under our legal system all discrimination by persons/entities other than the government is legal unless there is some law that expressly prohibits the discrimination involved. One law that prohibits some types of discrimination is the Civil Rights Act of 1964. But that Act does not bar the discrimination described here. No federal law does. And to my knowledge no state law would prohibit this particular instance of discrimination either, though it's possible that perhaps one or more states do. I can understand wanting to eliminate all instance of race discrimination but new legislation would be needed to bar what this app is doing, perhaps an amendment to the Civil Rights Act of 1964.

I'm not saying it's crystal clear, and I'm not going to take the time to research it, but it wouldn't surprise me to find out that this sort of thing has yet to be litigated, and it wouldn't at all surprise me to find most courts ruling that apps are "places of public accommodation."

The problem with this particular case is that the service, as I understand it, is simply a listing of black owned businesses. It therefore doesn't meet the definition in the Act of the sorts of things that are public accommodations. In my research of the cases on this the courts look to see if the establishment, whether a brick and mortar or online, fit within one of the boxes, if you will, that the statute lays out as places of public accommodation. I don't see anywhere in that list of places that would fit a simple listing of black owned businesses. Moreover, many courts have held that virtual only businesses simply don't meet the requirement for a place of public accommodations under the Civil Rights Act (CRA):

“Whether an entity qualifies as a ‘place of public accommodation’ can be a fact-intensive inquiry, because establishments ‘differ markedly in their operations.’ ” Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 431 (4th Cir. 2006) (quoting Nesmith v. YMCA of Raleigh, N.C., 397 F.2d 96, 98 (4th Cir. 1968)). Twitter is correct that a number of courts have concluded that companies which provide online services exclusively do not fall under the ambit of Title II's prohibition against discrimination in places of “public accommodation” as that definition is limited to businesses which operate out of physical facilities. See e.g. Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 541 (E.D. Va. 2003), aff'd, No. 03-1770, 2004 WL 602711 (4th Cir. Mar. 24, 2004) (“[A]s the relevant case law and an examination the statute's exhaustive definition make clear, ‘places of public accommodation’ are limited to actual, physical places and structures, and thus cannot include chat rooms, which are not actual physical facilities but instead are virtual forums for communication provided by AOL to its members.”); see also Ebeid, No. 18-CV-07030-PJH, 2019 WL 2059662, at *6 (“Facebook is not a public accommodation covered by Title II.”).

Wilson v. Twitter, No. 3:20-CV-00054, 2020 WL 3410349, at *7 (S.D.W. Va. May 1, 2020), report and recommendation adopted, No. CV 3:20-0054, 2020 WL 3256820 (S.D.W. Va. June 16, 2020). The magistrate goes on to note that under the Americans with Disabilities Act (ADA) courts have found some virtual businesses to be places of public accommodation, but the language of the ADA is slightly different from the CRA. Might the courts evolve to extend the ADA rulings to the CRA and include virtual only businesses within the scope of public accommodation? Perhaps they will. But even if they do, they still must find that the virtual businesses fall in one of those boxes that describes a place of public accommodation.

[Equality4all]

Stop reporting "racism" in this thread. You are not the victim of racism. Your civil rights are not being violated - not by Ron's snarky comment, not by the existence of the app. Knock it off.

https://www.merriam-webster.com/dictionary/racism

I apologize for having to correct you, as you are a moderator, however Ron's prejudicial statement, that automatically assumed I was "mr. White victim" was ABSOLUTELY racist according to Merriam Webster dictionary, and others.
Thanks for trying to shame me into not standing up against racism in use.

Under our legal system all discrimination by persons/entities other than the government is legal unless there is some law that expressly prohibits the discrimination involved. One law that prohibits some types of discrimination is the Civil Rights Act of 1964. But that Act does not bar the discrimination described here. No federal law does. And to my knowledge no state law would prohibit this particular instance of discrimination either, though it's possible that perhaps one or more states do. I can understand wanting to eliminate all instance of race discrimination but new legislation would be needed to bar what this app is doing, perhaps an amendment to the Civil Rights Act of 1964.



The problem with this particular case is that the service, as I understand it, is simply a listing of black owned businesses. It therefore doesn't meet the definition in the Act of the sorts of things that are public accommodations. In my research of the cases on this the courts look to see if the establishment, whether a brick and mortar or online, fit within one of the boxes, if you will, that the statute lays out as places of public accommodation. I don't see anywhere in that list of places that would fit a simple listing of black owned businesses. Moreover, many courts have held that virtual only businesses simply don't meet the requirement for a place of public accommodations under the Civil Rights Act (CRA):

“Whether an entity qualifies as a ‘place of public accommodation’ can be a fact-intensive inquiry, because establishments ‘differ markedly in their operations.’ ” Denny v. Elizabeth Arden Salons, Inc., 456 F.3d 427, 431 (4th Cir. 2006) (quoting Nesmith v. YMCA of Raleigh, N.C., 397 F.2d 96, 98 (4th Cir. 1968)). Twitter is correct that a number of courts have concluded that companies which provide online services exclusively do not fall under the ambit of Title II's prohibition against discrimination in places of “public accommodation” as that definition is limited to businesses which operate out of physical facilities. See e.g. Noah v. AOL Time Warner, Inc., 261 F. Supp. 2d 532, 541 (E.D. Va. 2003), aff'd, No. 03-1770, 2004 WL 602711 (4th Cir. Mar. 24, 2004) (“[A]s the relevant case law and an examination the statute's exhaustive definition make clear, ‘places of public accommodation’ are limited to actual, physical places and structures, and thus cannot include chat rooms, which are not actual physical facilities but instead are virtual forums for communication provided by AOL to its members.”); see also Ebeid, No. 18-CV-07030-PJH, 2019 WL 2059662, at *6 (“Facebook is not a public accommodation covered by Title II.”).

Wilson v. Twitter, No. 3:20-CV-00054, 2020 WL 3410349, at *7 (S.D.W. Va. May 1, 2020), report and recommendation adopted, No. CV 3:20-0054, 2020 WL 3256820 (S.D.W. Va. June 16, 2020). The magistrate goes on to note that under the Americans with Disabilities Act (ADA) courts have found some virtual businesses to be places of public accommodation, but the language of the ADA is slightly different from the CRA. Might the courts evolve to extend the ADA rulings to the CRA and include virtual only businesses within the scope of public accommodation? Perhaps they will. But even if they do, they still must find that the virtual businesses fall in one of those boxes that describes a place of public accommodation.

Thats a good answer, but these are cases earlier than even the tax now levied almost throughout the whole country on digital services like buying a $1.99 pack in candy crush, also before FAANG started abusing its protections. I have a feeling if there isn't case law that defines this as illegal yet, there will be soon. There would be mass protests if this app was listing white owned businesses only. Heaven help the wise guy that creates one if this picks up. Somebody will certainly stir the pot and force a reaction out of the country over this. Probably before November too.

It just doesnt make sense to me why someone would not make a TOTAL index, and toplist black owned, or give support and highlights to them a different way, if the intention was not also to disinclude non black.

For the record, the largest nationality I am, of the ten or so i am mixed up with, is Spanish. I do object to being called a "white victim" as that refers to me having "white privilege" which is also taking the leap that because I am voicing this issue, I must be white with something against blacks, and nothing could be farther from the truth. My religion is Jewish on top of that. As I've seen the BLM movement combine with the BDS movement and preach holocaust denial, it alarms me to see segregation moving further towards division with apps like this. That is why I brought it up. And created an account for bringing it up, so that people with the knee jerk reaction like ron, that I must be anti black, cannot destroy my life for asking a question.

[Taxing Matters]

I have a feeling if there isn't case law that defines this as illegal yet, there will be soon.

The problem is that the courts lack the power to define what is illegal. That is the job of Congress and the state legislatures. There needs to be a statute that makes it illegal. To the extent that some part of such a statute is unclear, the courts have the task to interpret the statute the best they can based on what they think the legislature intended. That gives the courts only so much room to work with. They have to take the statutes as they are, not what they might like them to be. So it may be that what is needed here is to get Congress to amend the law to make this kind of thing illegal, subject to the concerns I raise next.

It occurs to me that even if Congress did pass a statute making this illegal that in this instance that statute would fail on First Amendment grounds. As I understand it, all this app does is list Black owned businesses. Consider the case of a newspaper constructing a listing of Black owned businesses as a service for readers who would like to show support for such businesses in this BLM environment. A law that would prohibit the newspaper from printing such a list or that would dictate to it what businesses it must list in its article would amount to government regulation of speech and thus that law would be unconstitutional in that context. The newspaper has the right to express its support for Black owned businesses by making people aware of them. This app seems to be no different than that, except its listing is not in a newspaper but rather in the form of an app. As a result, I think there may well be significant First Amendment concerns in prohibiting the app publisher from doing what it is doing.

[flyingron]

Yes, while it does take advertisements, I don't think you need to be black to advertise. It does accept listings submissions for free from anywhere, but obviously limits them to black-owned business. I agree with TM.

There's no "Business Customer" as eq4all is alleging.