Uber is back in the news with the filing of this case discussed in this article that came up in my Google alert. I have discussed Uber before as seen in this blog entry. I thought it would be interesting to highlight and discuss some of the features of the complaint and my thoughts. Accordingly, the blog entry is divided into categories of the complaint itself and my thoughts. It’s a pretty short blog entry, and so you probably want to read the whole thing.
- The case involves a person out of Mansfield, Texas, which is about 23 minutes southeast of Fort Worth, Texas.
- The lawsuit was filed in the Northern District of California. How did they do that? They can do that because 28 U.S.C. §1391(b)(1) allows a lawsuit to be filed where the defendant is located.
- Allegations also include violations of Texas law. In particular, the Texas Human Resources Code, which we discussed in this blog entry.
- The suit involved some 25 times where the plaintiff was denied the opportunity to ride an Uber with her service dog, which she uses to provide balance and counter balance as well as stability. The dog is also used to provide the plaintiff with migraine headache alert and to provide grounding for post-traumatic stress disorder.
- Allegations include that Uber was contacted and did nothing. I find that interesting in light of the settlement discussed in the above blog entry.
- Allegations also include that the system whereby drivers rate the passengers discriminates against persons with disabilities as it allows lower ratings to be given by drivers on the basis of a person using a service dog. That is, the rating system gives drivers a means of screening out passengers with service animals.
- The allegations include both violations of the public accommodation provisions as well as the demand responsive system provisions (42 U.S.C. §§12182(a), 12182(b)(2)(c)), and their implementing regulations.
- Plaintiffs are looking for both damages and injunctive relief under both title III of the ADA and the Texas Human Resources Code. There are also allegations of the intentional infliction of emotional distress.
- Interesting that the plaintiff only used Uber and that there is no suggestion in the complaint that she tried another service, such as Lyft, which has taken a less adversarial approach to disability advocacy groups.
- The questions in this case are whether a place of public accommodation is involved and/or whether a demand responsive system is involved. With respect to a place of public accommodation, the only one that might work is 42 U.S.C. §12181(7)(F), service establishments. After all, both Uber and the Uber driver are providing a service. Then again, while services are most definitely being provided, the listing in that particular provision isn’t really the same kind of thing as to what Uber and the Uber driver are doing.
- A demand responsive system may be the better argument. Under 42 U.S.C. §12182(b)(2)(c), for a private entity to be subject to demand responsive system rules, there is nothing to suggest it also must be a place of public accommodation. 42 U.S.C. § 12181(6) defines a private entity as anything that is not a public entity. Further, 42 U.S.C. § 12181(3) defines a demand responsive system as any system of providing transportation of individuals by a vehicle, other than a system which is a fixed route system. The plain language of both terms strongly suggests that both Uber and the Uber driver are a demand responsive system and therefore, are subject to those requirements. Similar language with respect to service animals being required to be allowed by private entities in their vehicles appears in 49 C.F.R. §37.167(d).
- With respect to case law involving whether a demand responsive system exists when it comes to Uber and the Uber drivers, I only found this case out of the Western District of Texas holding that whether specified public transportation services are involved per 42 U.S.C. §12184 is a mixed question of law and fact. Perhaps intentionally so, I don’t see any allegations in this complaint involving 42 U.S.C. §12184.
- The Texas Human Resources Code is also alleged to be violated per §121.003(c). Under the Texas Human Resources Code §121.002(5) the definition of a public facility is extremely broad so as to most likely include Uber and Uber drivers. A small amount of damages are allowed under §121.004.
- I realize that venue is allowed in San Francisco, but it will be interesting to follow whether Uber tries to move the case back to Texas. It would seem more convenient to do that with respect to all of the witnesses and even the plaintiff herself. It would also force the plaintiff’s law firms, which are based on a California, to get local counsel and try it in Texas.
- I don’t see anything in the complaint referencing Uber’s settlement mentioned above.
- The complaint also asked for damages for intentional infliction of emotional distress, which requires extreme and outrageous conduct. Some of the facts are pretty outrageous.