TAP A BUTTON, GET DENIED: UBER’S NONCOMPLIANCE WITH THE ADA

By: Carmen Carballo, Volume 104 Staff Member

I.  A CRASH COURSE ON UBER & SERVICE ANIMALS

The basic idea behind Uber is simple — “tap a button, get a ride.”[1] With this simple concept, Uber grew from a small app-based company in San Francisco[2] to an indispensable part of modern life. Uber currently operates in 65 countries worldwide,[3] completing approximately 14 million trips each day.[4] Uber even offers some users helicopter[5] and submarine[6] rides to their destinations.

Another trend emerged, parallel to Uber: the use of service animals, particularly emotional support animals.[7] Although difficult to measure without a centralized registration system, there are an estimated 500,000 service animals currently helping Americans.[8] The increasing use of service animals has generated fears over abuse of the system,[9] and some states have passed laws to impose penalties on those who pretend their pet is a service animal.[10]

These two trends have collided in a recent legal battle.[11] In Nat’l Fed’n of the Blind of California v. Uber Techs., Inc., an organization representing blind persons in California sued Uber, alleging that Uber drivers had refused to transport blind users because of their guide dogs in violation of the Americans with Disabilities Act (“ADA”) and corresponding state law.[12] Uber argued that the company is not a public accommodation under the ADA and thus not liable for ADA violations. Ultimately the parties reached a settlement agreement,[13] and Uber created a disability policy that parrots the language of the ADA.[14] This case leaves Uber’s liability under the ADA, or lack thereof, in limbo and allows Uber the privilege of self-regulation.[15] To remedy this situation, this Post argues that the Department of Transportation should revise its rule concerning public accommodations and officially categorize Uber and other internet-based services as a public accommodation under the ADA.

II.  THE ONGOING BATTLE OVER UBER AND THE ADA

Congress enacted the ADA in 1990 to prevent discrimination based on disability.[16] The ADA provides comprehensive protection to Americans with disabilities, but most pertinent to Uber is the provision governing public accommodations.[17] The Act provides a non-exhaustive list of examples of private entities who qualify as public accommodations as long as “the operations of such entities affect commerce.”[18] Among this list are travel services.[19]

Users have attempted to sue Uber and other app-based transportation services for violations of the ADA by their drivers.[20] These cases hinge on whether Uber, like traditional taxi companies,[21] are covered by the ADA as a transportation service.[22] These companies have repeatedly argued that they are not liable under the ADA as a public accommodation because they are a technology company rather than a travel service.[23] Uber argues that as a technology company, it has a “hands-off relationship with the drivers and passengers.”[24] Uber has further emphasized that it does not own the cars used for transportation and the drivers function as independent contractors.[25]

Disability advocates argue that the level of control Uber and other companies exercise over the transportation process shows that they are akin to a traditional transportation company.[26] Uber facilitates the requests for rides, but also controls who becomes a driver, what types of vehicles are acceptable, bills the users, and pays the drivers.[27] Additionally, from a user’s perspective, Uber’s service extends beyond simply connecting them to a driver; it includes the ride itself.[28] Advocates argue that the only way to truly enforce anti-discrimination policies in this context is legal liability.[29]

This issue has not yet been resolved in court, and Uber does not appear eager for a legal determination. Uber and Lyft choose to settle ADA cases, rather than roll the dice on a court’s interpretation of their legal status.[30] Yet Uber’s disability discrimination policy suggests that Uber drivers are subject to the ADA.[31] However, these internal guidelines are ultimately only enforceable through Uber’s own self-regulation. Given that users with disabilities repeatedly face discrimination,[32] a more active solution is necessary.

III.  THE DEPARTMENT OF TRANSPORTATION SHOULD TAKE ACTION TO CLASSIFY UBER AS A PUBLIC ACCOMMODATION

The question of Uber’s liability under the ADA should be addressed preemptively by the Department of Transportation (“DOT”)—the federal agency responsible for implementing regulations to enforce the ADA in transportation.[33]

The DOT’s regulations already extend to private entities, using language almost identical to the ADA.[34] By revising the existing regulation, the agency could clarify that internet-based transportation services are included under the term “public accommodation.” This revision, done by exercising a typical agency power, would embrace the most natural reading of the regulations. Both the ADA and the DOT regulations classify a transportation service as including a private entity “engaged in the business of transporting people.” Despite Uber’s protestations that it is simply a technology company, it is undoubtedly a technology company engaged in the business of transporting people.

Opponents argue that extending the ADA to Uber could start a domino effect, ultimately threatening the entire “on-demand” economy.[35] A DOT regulation compelling Uber to follow the ADA also compels Uber to control the behavior of its drivers.[36] This control could threaten the legal status of Uber drivers as independent contractors, which could then impose even more obligations on Uber.[37] Given the widespread use of similar business models,[38] a regulation protecting Americans with disabilities may up-end a large sector of the modern economy.[39]

However, this argument rests on speculation. Vulnerable Americans currently face discrimination and exclusion from the on-demand economy. Classifying Uber as a public accommodation is a necessary step to update the ADA. Regulating Uber would simply prohibit drivers from refusing to provide services based on a rider’s use of a service animal. Any costs of such a regulation are outweighed by benefits to the public.[40] Nearly 56.7 million Americans have disabilities[41] and without legal protection they will continue to be subjected to discrimination from major companies like Uber based on a technicality.

[1] Uber Developers, Tap a Button. Get a Ride. From Every App., Uber (Dec. 2, 2015), https://uber-developers.news/tap-a-button-get-a-ride-from-every-app-4a9d2eddf9f2 [https://perma.cc/5DKY-EAWB].

[2] Avery Hartmans & Paige Leskin, The History of How Uber Went From the Most Feared Startup in the World to its Massive IPO, Business Insider, May 18, 2019, https://www.businessinsider.com/ubers-history [https://perma.cc/U762-337C].

[3] Mansoor Iqbal, Uber Revenue and Usage Statistics (2019), Business of Apps (May 10, 2019), https://www.businessofapps.com/data/uber-statistics/ [https://perma.cc/T7K3-PGNL].

[4] Id.

[5] Noah Kulwin, Uber Made It Cheaper to Take a Helicopter Than a Car to the Airport, The Future (Dec. 26, 2019, 1:38PM), https://theoutline.com/post/8467/uber-helicopter-airport?zd=1&zi=6dcvwuhz [https://perma.cc/ZQN4-948U].

[6] Katie Jackson, Uber is Now Offering On-Demand Submarine Service at the Great Barrier Reef, Travel + Leisure (May 23, 2019), https://www.travelandleisure.com/trip-ideas/nature-travel/uber-on-demand-submarine-great-barrier-reef [https://perma.cc/PM7Z-QZ4G].

[7] See, e.g., Farah Stockman, People are Taking Emotional Support Animals Everywhere. States are Cracking Down, N.Y. Times, Jun. 18, 2019; Angela Betsaida B. Laguipo, Use of Emotional Support Animals Growing in Popularity, News Medical (Aug. 7, 2019), https://www.news-medical.net/news/20190807/Use-of-emotional-support-animals-growing-in-popularity.aspx [https://perma.cc/4BBA-CDNP].

[8] Mark Trainer, Service Dogs Save Lives, ShareAmerica (Sept. 30, 2016), https://share.america.gov/service-dogs-save-lives/ [https://perma.cc/92UX-E3GD].

[9] Jeremy Bauer-Wolf, Dog Days in Dorms, Inside Higher Ed (May 21, 2019), https://www.insidehighered.com/news/2019/05/21/colleges-see-rise-popularity-emotional-support-animals [https://perma.cc/G387-6QPT] (stating that verification letters from mental health professionals can be easily found online).

[10] Stockman, supra note 7.

[11] Nat’l Fed’n of the Blind of California v. Uber Techs., Inc., 103 F. Supp. 3d 1073 (N.D. Cal. 2015).

[12] Id.

[13] Uber Newsroom, Settlement with the National Federation of the Blind, Uber (March 1, 2017), https://www.uber.com/newsroom/nfb-settlement [https://perma.cc/YC5X-WPYU].

[14] Uber, Service Animal Policy, https://www.uber.com/us/en/about/accessibility/service-animal-policy/ [https://perma.cc/A82C-ZXSC].

[15] Id. The policy states that drivers who discriminate against riders with service animals will be barred from driving for Uber.

[16] Americans with Disabilities Act of 1990, 42 U.S.C. § 12101(b) (2012) (enumerating the purposes of the ADA).

[17] 42 U.S.C. § 12182 (1990) (prohibiting disability discrimination “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”).

[18] 42 U.S.C. § 12181(7) (1990).

[19] 42 U.S.C. § 12181(7)(F).

[20] See, e.g., Cotter v. Lyft, Inc., 60 F. Supp. 3d 1067 (N.D. Cal. 2015); Nat’l Fed’n of the Blind of California v. Uber Techs., Inc., 103 F. Supp. 3d 1073 (N.D. Cal. 2015).

[21] Lorelei Laird, When Sharing Isn’t Caring: While the ‘Sharing Economy’ Provides Inexpensive Services, It Also Allows Small Businesses to Skirt Civil Rights Laws, 103 ABA J., 16, 17 (2017).

[22] Rachael Reed, Disability Rights in the Age of Uber: Applying the Americans with Disabilities Act of 1990 to Transportation Network Companies, 33 Ga. St. U. L. Rev. 517, 519–20 (2017).

[23] Id. at 520, 530; Nina Strochlic, Uber: Disability Laws Don’t Apply to Us, Daily Beast (May 21, 2015, 5:15 AM), http://www.thedailybeast.com/articles/2015/05/21/uber-disability-laws-don-t-apply-to-us.html [https://perma.cc/3H39-C6F3].

[24] Bryan Casey, Uber’s Dilemma: How the ADA May End the On-Demand Economy, 12 U. Mass. L. Rev. 124, 138 (2017).

[25] Id. at 138.

[26] Reed, supra note 22, at 532–33; Laird, supra note 21, at 18.

[27] Id.

[28] Reed, supra note 22, at 529.

[29] Casey, supra note 24, at 155–56.

[30] Laird, supra note 21, at 17; Reed, supra note 22, at 521.

[31] Uber, supra note 14 (“Federal law prohibit drivers using the Uber Driver app from denying service to riders with service animals because of the service animals, and from otherwise discriminating against riders with service animals.”).

[32] See, e.g., Complaint at 6–7, 10, Steele v. Uber Techs., Inc., No. 3:18-cv-01715 (N.D. Cal. Mar. 30, 2018) (alleging that multiple Uber drivers have refused to transport a woman with cerebral palsy due to her service dog).

[33] 49 C.F.R. § 37.1 (stating the purpose of the regulation).

[34] 49 C.F.R. § 37.5(f) (2015).

[35] Casey, supra note 24, at 124.

[36] Id.

[37] Id.

[38] Id. at 146 (“Multimillion-dollar startups such as DoorDash and GrubHub are routinely described as the “Uber of food delivery”; Taskrabbit, the “Uber of errands”; and Instacart, the “Uber of groceries.””).

[39] Id.

[40] The costs are also better borne by large companies who can distribute them among their large consumer base.

[41] Elizabeth A. Mapelli, Inadequate Accessibility: Why Uber Should Be A Public Accommodation Under the Americans with Disabilities Act, 67 Am. U. L. Rev. 1947, 1949­ (2018).