Travel Law: Uber and the blind

This week we take a look at a recent case involving Uber Technologies, Inc.

Travel Law: Uber and the blind

This week we take a look at a recent case involving Uber Technologies, Inc. (Uber) and the National Federation of the Blind of California (NFBC) regarding the alleged refusal of some UberX drivers to transport a blind passenger’s guide dog. Does the Americans with Disabilities Act (ADA) or similar state statutes apply to Uber as they do to other purveyors of travel services such as airlines [Travel Law 2.02[7](Air Carrier Access Act)(ACAA)], cruise lines [Travel Law 3.02[3][b][x]; [6][c](ADA)] and hotels [Travel Law 4.04[1][a][ii][A](ADA)]?

Travel Law Update

Close Your Window, Please

In Lerner, Lion mauls Rye woman in S. Africa, The Journal News, June 4, 2015, p. 1, it was noted that “A Rye native mauled to death by a lion in South Africa was about to start a two-week volunteer stint on a wildlife preserve dedicating to saving rhinoceroses and elephants…Kate Chapell was killed Monday when a lion dragged her from her car as she was riding through a safari park near Johannesburg…Lt. Col. Lungelo Dlamini, a spokesman for the police (said) ‘The allegation is that while she was driving, the window was open and the lion attacked’. Simpson, the park spokesman, said opening windows is against park policy, and numerous signs-plus leaflets given to visitors-reinforce those rules. About 180,000 tourists visit the park every year”.

Chinese Cruise Ship Disaster

In Forsythe, Decisions by Captain in Yangtze Ship Disaster Come Under Scrutiny, newtimes.com (6/3/2015) it was noted that “Up ahead, a violent lightning storm lit up the dark sky and rain pounded ships on the Yangtze River. At 5 p.m. on Monday, the local maritime bureau sent a notice intended for all vessels, warning them to expect heavy rain and thunderstorms for the next six hours. At least, two vessels, a cruise ship and a ship that transported cars, stopped their upstream journeys, dropping their anchors into the shallow, muddy water. But the Oriental Star sailed on. Time-stamped video footage captured by a camera on another vessel shows the cruise ship-with four tiers of brightly lit cabins-heading into the darkness and driving rain about 33 minutes before it capsized. Two days later, only 14 people among the 456 aboard have been found alive. The decision to sail into what clearly seemed to be a severe storm was one of several made by the ship’s captain…that came under scrutiny on Wednesday as hopes faded for finding additional survivors of China’s worst passenger ship disaster in decades”. In Wong & Forsythe, Few Triumphs in Frantic Hunt for 430 in Yangtze River, nytimes.com (6/2/2015) it was noted that “Zhu Hongmei, 65, had somehow managed to work her way into an air pocket in the capsized cruise ship. She stayed there for 15 or so hours despite the cold and the currents and the darkness…And on Tuesday, a rescue diver appeared with scuba equipment to guide her, after just five minutes of instruction, through the murky waters and out of the Yangtze River, back into the light”. nytimes.com

Yelp Battling Reviewer Suit

In Kendall, Yelp Stuck Battling Reviewer Suit, therecorder.com (5/20/2015) it was noted that “For nearly two years, claims that Yelp Inc. should pay people who post on its site have dogged the company like a bad review…This week, the entire mess landed in the Northern District of California after Yelp won a motion to move the case closer to the company’s San Francisco headquarters. Florida attorney Daniel Bernath claims Yelp cheated its legions of reviewers by refusing to pay them for content they post on the website. The reviewers were Yelp’s employees, Bernath argues, comparing the company’s practice of withholding wages to that of a ‘21st Century galley slave ship’. ‘Defendant could not exist, nor make its returns, without labors of and its control over unpaid writers’ Bernath wrote. In the company’s motion to dismiss, Yelp senior director of litigation (and outside counsel) deride the potential class action as ‘outrageous’…’Under plaintiffs’ theory, popular websites like Amazon, eBay, Facebook, Google and Twitter would suddenly gain hundreds of millions of employees’ the lawyers wrote ‘all entitled to billions of dollars in payment by the mere fact that they have used these online forums to express themselves through content contributions’”.

The Uber Lawsuit

In National Federation of the Blind of California v. Uber Technologies, Inc., 2015 WL 1800840 (N.D. Cal. 2015) the Court stated that “The National Federal of the Blind of California
(NFBC) and three individuals allege that Uber and its California subsidiaries discriminate against blind persons by refusing to transport guide dogs. Plaintiffs charge that Uber’s practices violate the Americans with Disabilities Act (ADA), the California Unruh Civil Rights Act (Unruh Act) and the California Disabled Persons Act (DPA). Defendants move to dismiss the complaint… (alleging) that NFBC (and individual plaintiffs) do not have standing to sue under the ADA or state law claims and that Uber is not a public accommodation under the ADA”.

The Parties

“UberX is a widely available transportation service that uses mobile software applications to arrange rides between passengers and Uber’s fleet of UberX drivers…Uber provides several different transportation services in California, and UberX is one of Uber’s most cost-effective transportation services…Those individuals who download Uber’s mobile phone application agree to Uber’s terms of service, including an agreement to submit all disputes to binding arbitration…(The NFBC) is a nonprofit association of blind Californians, which aims to achieve integration of the blind into society on a basis of equality with the sighted. Members of NFBC use UberX on Uber’s smart phone application using text-to-speech technology”.

The Individual Complaints

The complaint alleged that Mr. X “is a NFBC member and does not have an Uber account…(Mr. Y) used the Uber mobile app to request an UberX vehicle for himself and (Mr. X). Both men had service animals with them. When the UberX vehicle pulled up to the curb, (Mr. X and Mr. Y) attempted to enter the vehicle and opened a passenger door. The UberX driver began shouting ‘no dogs’ and cursed at the men. The UberX driver left without transporting (Mr. X and Mr. Y). Plaintiff (Mr. Z) is blind, uses a guide dog and is a member of NFBC. (Mr. Z) travels with his girlfriend (Ms. A) who is also blind and uses a guide dog…On September 13, 2014, an UberX driver refused to transport (Mr. Z and Ms. A) because of their guide dogs. Both intend to keep using UberX transportation services…Plaintiffs allege that Uber engages in discriminatory practices by permitting UberX drivers to deny access to blind individuals and their guide dogs”.

Standing

The Court found that the NFBC as an association and its individual members who are plaintiffs and who were denied access to UberX transportation had standing under the ADA to assert their claims of discrimination. One plaintiff (Mr. B), however, was not denied access to an UberX vehicle but was “deterred from using UberX…because he could not afford to be delayed by an UberX driver refusing to take his guide dog. (Mr. B) would like to use UberX in the future, but does not believe that UberX is a reliable source of transportation”. The Court found that even Mr. B had standing. “The ADA directs this Court to relax its standing for injury in fact in order to discourage both piecemeal litigation and futile attempts at access. (Mr. B) does not need to use UberX’s services and risk being turned away when he has knowledge that disabled individuals with service animals have been turned away, and be believes there is a likelihood of continued discrimination”. Regarding standing under California’s Disabled Persons Act (DPA) the Court noted “that the DPA affords ‘greater protection compared to the ADA’ because its ‘standing provision is broader than its federal counterpart’”.

Uber’s ADA Liability

“Uber urges this Court is find that it is not a public accommodation under the ADA, placing it outside the scope of regulated businesses…Plaintiffs have alleged Uber is liable under the ADA under 42 U.S.C. 12182(b) as a ‘public accommodation’ or 42 U.S.C. 12184 as a ‘specified public transportation service’. Uber asserts only that it is not a ‘public accommodation’ under the ADA, but does not ask the Court to dismiss the complaint as to the specified public transportation service claim. The ADA lists twelve categories of private establishments that are considered a ‘public accommodation’ if they affect interstate commerce…Plaintiffs allege that Uber’s operations fall under the ‘travel service’ category, so Uber qualifies as a public accommodation’…The ADA does not define travel services. (However), here, defendants have not cited any binding law that Uber’s service is precluded from regulation as a ‘travel service’…In the absence of clear law to the contrary, the Courts finds that plaintiffs’ allegations, when taken as true, demonstrate a plausible claim for Uber’s ADA liability under (42 U.S.C.) 12182…At the pleading stage, the Court must take all facts pled in the complaint as true and consider whether the information provided is sufficient to allege a plausible claim…the Court finds that plaintiffs have sufficiently alleged claims for discrimination under the ADA, the Unruh Act, the DPA and for declaratory relief”.

Conclusion

In Ruiz, Judge Oks Blind Riders’ Discrimination Suit Against Uber, therecorder.com (4/20/2015) it was noted that “Uber…has 14 days to answer charges that it discriminated against passengers with service dogs, after a federal judge denied the company’s motion to dismiss a proposed class action filed on behalf of blind individuals…The suit, filed in September, claims that Uber drivers refused to pick up passengers with service dogs…Last month, Uber updated its code of conduct for drivers to include a requirement to take riders with service dogs”. Stay tuned.

The author, Justice Dickerson, has been writing about Travel Law for 39 years including his annually updated law books, Travel Law, Law Journal Press (2015) and Litigating International Torts in U.S. Courts, Thomson Reuters WestLaw (2015), and over 350 legal articles.

This article may not be reproduced without the permission of Thomas A. Dickerson.

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