Today’s case is National Federation of the Blind of California v. Uber Technologies, Inc.. This case is receiving quite a bit of press, but I thought I would offer my own take on it. As is typical for my blog entries, I have divided the blog into categories: facts; issues; holdings; court’s reasoning; and takeaways. The reader is free to concentrate on any or all of the categories.
As many of you know, UberX is a transportation service using mobile software applications to arrange rides between passengers and Uber’s fleet of Uber X drivers. To use the services an individual must either create a user account and provide Uber with his or her phone number, credit card information, and email address, or travel as a guest of an individual who has a Uber user account. The customer submits a request on behalf of himself and other passengers through the mobile software application. Once Uber identifies the vehicle that will provide the customer transportation, Uber notifies the customer via text message or through a smart phone application. The notification includes vehicle and driver identification information as well as an estimated time of arrival. When the vehicle has arrived, Uber notifies the customer, and the customer and passengers may board the vehicle. Uber is one of the most cost-effective transportation services out there. Individuals downloading Uber’s mobile phone application agreed to Uber’s terms of service, including the agreement to submit all disputes to binding arbitration. Full disclosure: I have never used the service.
In this case, the National Federation of the Blind of California had several members who were denied transportation by Uber drivers because they have service dogs accompanying them. Other members of the Association, having heard the stories, simply did not want to try Uber, though they would like to, because of the likelihood of humiliation they would suffer on account of the guide dogs. The National Federation of the Blind of California and three other plaintiffs brought suit alleging violations of title III of the ADA, the California Unruh Civil Rights Act, and the California Disabled Persons Act. The remedy sought by the National Federation of the Blind of California was injunctive and declaratory relief.
1. Did the National Federation of the Blind of California have standing to bring the lawsuit?
2. Are the claims of the National Federation of the Blind of California precluded by arbitration agreements or by prudential considerations?
3. Did the plaintiff who wanted to use Uber’s services but had not tried to do so have standing?
4. Are the National Federation of the Blind of California and the plaintiff wanting to use the services but never having tried to do so, aggrieved persons under the Unruh Civil Rights Act and the Disabled Persons Act of California?
5. Does the plaintiff whose wife uses Uber but who had been denied use of Uber when his wife uses Uber on account of his guide dog, have standing to pursue a claim?
6. Is Uber a place of public accommodation under the ADA?
6. Potentially yes
1. An association has standing when: 1) it’s members would otherwise have standing to sue in their own right; 2) the interest the Association seeks to protect are germane to the organization’s purpose; and 3) neither the claim asserted nor the relief requested requires the disposition of individual members in the lawsuit.
2. Critically, claims for declaratory and injunctive relief do not require individualized proof and those were the only remedies that the National Federation of the Blind of California were seeking on behalf of its members.
Since the National Federation of the Blind of California only brought claims on behalf of members who would have standing and was not seeking monetary relief, the arbitration agreements were not a bar to associational standing.
The National Federation of the Blind of California joined with three individuals in the lawsuit and claimed to represent the interests of the membership at large. Therefore, the Association was not simply standing in for one of its members, but rather representing a broad membership base, which it alleges has sufficiently been injured by Uber, and therefore, prudential considerations will not bar the claims. An explanation is in order here. The court notes that a few District Court cases have found that an organization is not the proper party for bringing a claim where the organization was merely repeating the claims of individuals. However, for the reasons noted in this paragraph, the court did not feel that this was the situation here.
1. The ADA does not require a person with a disability to engage in a futile gesture if such a person has actual notice that a person or organization does not intend to comply with the law.
2. That is, in order to have standing, there must be an injury in fact, which can be established if a person can show that he or she was deterred from visiting the accommodation on specific occasions when he otherwise would have visited because of the known barriers there.
3. At the pleading stage, a plaintiff has to show: 1) actual notice of discriminatory practices; 2) specific occasions when he was deterred from visiting the accommodation; 3) an intent to return; and 4) a likelihood of continued discrimination.
4. Allegations were made that this particular individual has specific and general knowledge of experiences of multiple Uber passengers with service animals being denied access.
5. 9th Cir. case law holds that a plaintiff need only allege one instance of an ADA violation to achieve standing, but then has the ability to challenge other ADA violations found in the course of discovery. Again, the critical fact here is that this particular plaintiff had knowledge that persons with disabilities with service animals had been turned away and believed that there was a likelihood of continued discrimination.
1. Standing provisions under the California Unruh Civil Rights Act and the California Disabled Persons Act are broader than their federal counterparts because under those laws, plaintiff can bring a claim seeking injunctive relief if he or she can show that he or she was aggrieved or potentially aggrieved.
2. California courts do not require proof that a plaintiff intends to encounter or has been deterred from encountering a given architectural barrier when it comes to claims under the Disabled Persons Act.
3. It was clear to the court that state law statutory provisions of California were meant to work in harmony with the ADA by allowing a plaintiff proving an ADA violation to seek monetary recovery for an actual harm and attorneys fees, neither of which the court said were available under the ADA.
I get the damages for actual harm piece not being a remedy covered by title III of the ADA. However, the court also references attorney’s fees as not being covered by the ADA, which is not the case, unless, the court is referring to the collection of attorney’s fees with respect to actual harm.
4. Case law in the particular district where this case was filed holds that an association establishing standing under the ADA also has standing to pursue the state law claims.
5. The plaintiff who used Uber through his wife had alleged sufficient facts to establish standing and that he was able to show that he intended to use the service again and faced the likelihood of future discrimination.
1. Plaintiff alleged that Uber was liable under the ADA under either 42 U.S.C. § 12182(b) as a place of public accommodation or under 42 U.S.C. § 12184 as a specified public transportation service. Uber asserted only that it is not a place of public accommodation under the ADA, but did not ask the court to dismiss the complaint as to the specified public transportation service claim.
I find this strategy very odd. Certainly, I understand the strategy of saying that Uber is not a place of public accommodations. However, I would not have been so fast to not contest the point that Uber was also not a specified public transportation service. With regards to public transportation services, it is pretty clear from reviewing the final Department of Transportation regulations, which we discussed in this blog entry, that public transportation is referring to public entities and Uber is not a public entity. Also, if you look at the final rule of the Department of Transportation, it says it is a final rule implementing title II and title III of the ADA. Therefore, to be covered by that regulation, an entity would have to be subject to title II or title III of the ADA in the first place or take federal funds, which means it would be subject to the same regulations by virtue of the Rehabilitation Act. One only wonders if by adopting this strategy, Uber has now waived the right to contest the claim of coverage under the ADA as a specified public transportation service.
2. Plaintiffs claimed that Uber’s operation fell under the travel service category.
3. The ADA does not define travel services. Accordingly, since defendants did not cite any binding law that Uber’s service was precluded from coverage under the ADA as a travel service, in the absence of clear law to the contrary, the plaintiff demonstrated a plausible claim for Uber’s ADA liability as a place of public accommodation. Whether that will ultimately become the case, needed more factual development and a motion to dismiss was not appropriate.
1. I would expect lots of litigation over what travel services means. Also, that is going to tie into the discussion of whether the travel services are attached to a physical place as we have seen in this blog entry and the links contained therein. Back in the day, travel services was pretty clear. You called up a travel agency and they made a reservation for you or they met with you to figure out what you wanted to do. My wife and I planned our honeymoon in such a traditional way. However, things have evolved considerably over the last 25 years. Now, travel services are done online. While it is true that the courts are split with respect to whether places of public accommodations means a physical place or not, in this situation Uber, through its fleet of cars, is very much attached to a physical place, albeit one on wheels.
2. Don’t give away defenses unnecessarily because quite often doing so means waiving the right to raise that defense later (standing being the exception to that rule).