This week’s blog entry discusses Uber’s settlement with the National Federation of the Blind. The blog entry is divided into two categories: the terms of the settlement; and just how is Uber covered by the ADA and thoughts. The reader is free to focus on any or all of the categories, but since the blog entry is so short, you will probably read all of it. I have never taken Uber or its counterpart Lyft to date because of the litigation involving persons with disabilities. With this settlement, at least I know that Uber is trying, though from all reports, they still have a long way to go. Accordingly, I think I just might try Uber soon. From the reports I have read, a similar disability discrimination suit against Lyft is still in negotiation.

I

Uber’s Settlement with the National Federation of the Blind

Awhile back, September 2014, the National Federation of the Blind sued Uber for disability discrimination. That is, Uber drivers often did not accept requests for rides from those with service animals. The complaint also alleged that blind passengers were forced to pay cancellation fees after they were passed over by Uber drivers. On April 29, Uber announced that a proposed settlement was going to be submitted to the court. I have not seen the settlement, but The Recorder in this article , discusses some of the terms, which include:

  1. Uber is on the hook for up to $85,000 to monitor compliance with the agreement over the next five years. With respect to this, Uber said in their press release that they would be paying the National Federation of the Blind $225,000 over three years, and the Federation will run a testing program to evaluate the effectiveness of the settlement by having blind riders request and take trips on Uber.
  2. Uber will pay as much at $300,000 to the National Federation of the Blind and $45,000 to the three blind California plaintiffs on whose behalf the original lawsuit was filed and will pay plaintiffs attorneys fees as well;
  3. Uber drivers will now have to affirmatively agree to accept service animals in their car and acknowledge that there are no exception for allergies or religious reasons. They also will not be able to charge a cleaning fee for accepting a service animal;
  4. Uber will make it easier for blind and visually impaired riders to lodge complaints about service animal access. Uber will have to follow up with those riders as to how it handled the complaint. If a driver is deactivated as a result of that complaint, the rider gets a $25 ride credit;
  5. Uber will have to gather data about those complaints and report it to class counsel periodically over the term of the agreement. The settlement is for three and half years initially, but can be extended to five years of the parties agree or if a yet to be appointed third party monitor determines that Uber is failing to comply with the terms.

II

But How Is Uber Covered by the ADA in the First Place and Thoughts

  1. When one thinks of the ADA, they think of: title I (employment); title II (accessing governmental entities programs and activities); and title III (accessing places of public accommodations). So, is Uber a place of public accommodation? The places of public accommodation are listed in 42 U.S.C. § 12181(7). Keep in mind, the categories are exclusive, but the examples are not. If one looks at all the categories, the only one that is remotely possible is that of “other service establishment,” per 42 U.S.C. § 12181(7)(F). After all, Uber is providing a service. However, the kinds of things listed in that category (laundromat, drycleaner, bank, barbershop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, or hospital), are clearly not even close to what Uber is.
  2. Since Uber is not a place of public accommodation most likely, how on earth is it covered by the ADA? The answer lies in another provision of title III of the ADA, 42 U.S.C. § 12184. 42 U.S.C. § 12184(a) states that, “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of specified public transportation services provided by a private entity that is primarily engaged in the business of transporting people and whose operations affect commerce.”
  3. 42 U.S.C. § 12181(10) defines specified public transportation as, “transportation by bus, rail, or any other conveyance (other than by aircraft) that provides the general public with general or special service (including charter service) on a regular and continuing basis.”
  4. So, certainly Uber is providing the general public with general or special services on a regular and continuing basis. Also, transportation services are not being provided by aircraft, the one exception to coverage.
  5. Uber has said, according to reports, that they are not primarily engaged in the business of transporting people, but rather they are a technology company. That argument on its face would seem to be a stretch.
  6. Notice how 42 U.S.C. § 12184 refers to causation in terms of, “on the basis of disability.” That means, mixed motive may well be in play per this blog entry.
  7. If 42 U.S.C. § 12184 applies, then the private entity per 42 U.S.C. § 12184(b)(2), must make reasonable modifications, provide auxiliary aids and services, and remove barriers in the same way as places of public accommodations.
  8. It is interesting that this case does not appear to contain any allegations of violating § 504 of the Rehabilitation Act. After all, even if Uber does not have a contract with the federal government, it is almost inconceivable that federal government employees are not using Uber and being reimbursed for same by their employer. I suppose in that eventuality, the question would arise whether the pass-through would be sufficient to count as receiving federal funds. A far cleaner question, would be if Uber receives funds directly from the federal government through a contract. It isn’t inconceivable that such arrangements exist. While it is true that causation would be different (solely by reason of), a suit under § 504 the Rehabilitation Act would open up damages if deliberate indifference could be shown, which may be possible in this case.
  9. Now that Uber drivers have to accept service animals, they may very well want to read this blog entry discussing just what is a service animal. Considering the limits on the type of questions that can be asked with respect to determining whether the animal is a service animal, it seems more likely that as a matter of course, anybody with a dog (a miniature horse is not going to fit in a Uber), desiring to ride a Uber vehicle is probably going to be allowed in the vehicle no questions asked even though that goes beyond what the law requires.

So, the bottom line here is that sometimes the ADA comes into play even if it goes beyond what one typically thinks of title I, title II, and title III situations. In short, while I don’t see how Uber could possibly be a place of public accommodation, a strong argument exist that they are an entity engaged in specified public transportation services and therefore subject to nondiscrimination requirements of 42 U.S.C. § 12184. Accordingly, I can see why a settlement would make sense.

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