Lydia Turnage, CLS ’21
On November 12, a magistrate judge in the Western District of Pennsylvania ruled that a group of wheelchair users from Pittsburgh could move forward with their proposed class action against the ride-share company Uber for alleged violations of the Americans with Disabilities Act (ADA) despite Uber’s attempt to force arbitration on the issue.[1] The plaintiffs in this case were able to successfully navigate around the arbitration clause included in Uber’s terms and conditions of service by virtue of the fact that none of the plaintiffs have ever actually used or downloaded the Uber app.[2] In fact, this lack of use is central to their claim: namely, that downloading and using the Uber app would be “futile,” due to company’s alleged failure to provide sufficient access to wheelchair accessible vehicles.[3]
The plaintiffs in the Pennsylvania suit, like plaintiffs in similar actions brought against Uber as well as its competitor Lyft,[4] brought their claims under Title III of the ADA. Specifically, the plaintiffs allege that Uber is in violation of Section 12182 of the Act, which prohibits private entities that own or operate public accommodations from discriminating on the basis of disability[5], as well as Section 12184, which prohibits disability discrimination in regards to specified public transportation services provided by private entities.[6] The plaintiffs argue that under the ADA, “individuals…who rely on wheelchairs for mobility and thus also wheelchair accessible vehicles (“WAVs”) for transportation, are injured by [Uber’s] failure to provide any access to its on-demand ridesharing transportation service to disabled individuals requiring WAVs….”[7] While the Pennsylvania plaintiffs were successful in bypassing the arbitration clause and establishing Article III standing, they now face the much greater challenge of convincing the court that Uber is actually subject to ADA liability.
Recent federal court cases regarding Title III claims brought against Uber and Lyft highlight the challenges faced by plaintiffs seeking to enforce the ADA against ride-sharing apps and other companies operating in the sharing economy. These companies—including Uber, Lyft, and Airbnb—do not operate as actual service providers, but rather serve to facilitate transactions between users and independent providers in ways intended to “mak[e] the transaction easy, possible, and safe.”[8] While this business model is good for people looking for convenient app-based services or side hustles, it has proven detrimental to individuals with disabilities who face the double disadvantage of being denied both accessible services and ADA protections.
Title III of the ADA requires that businesses open to the public take reasonable steps to ensure that their goods and services are accessible to individuals with disabilities.[9] Importantly, however, the ADA doesn’t reach private homes or private cars, which makes it difficult to hold home- and rise-share companies liable for widespread barriers to accessibility.[10] There is also a significant circuit split on the question of whether the ADA applies to internet- or app-based companies without physical locations.[11] These issues have allowed app-based companies like Uber, Lyft, and Airbnb to argue that they are primarily technology companies that do not operate public accommodations within the meaning Title III.[12] Lyft even went so far as to argue in federal court earlier this year that “it is not in the transportation business.”[13] While some courts have allowed plaintiffs to survive motions to dismiss on the basis that they have stated plausible claims of ADA liability,[14] it is far from clear whether courts will actually take the step of defining these companies as public accommodations under Title III.
Companies like Uber, Lyft, and Airbnb have so far benefitted from the regulatory grey area created by the advent of the sharing economy, skirting ADA liability by relying on definitions for covered businesses that were written in a pre-internet world. Because individuals with disabilities make up a relatively small percentage of their users, discrimination is likely to continue without pressure from Congress or the courts. As ongoing litigation like the class action in Pennsylvania demonstrates, the time has come for the law to catch up with the realities of modern business practices if the ADA is to live up to its promise of equal access for all.
[1] O’Hanlon et al. v. Uber Technologies, Inc. et al., Civil Action No. 2:19-cv-00675, U.S. Dist. LEXIS 196029 (W.D. Pa. Nov. 12, 2019)
[2] Id. at *3.
[3] Id.
[4] Plaintiffs brought similar claims in Lowell v. Lyft, Inc., 352 F. Supp. 3d 248 (S.D.N.Y. Nov. 29, 2018), and Namisnak v. Uber Techs., 2018 U.S. Dist. LEXIS 221054 (Apr. 13 2018).
[5] 42 U.S.C. § 12182 provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
[6] 42 U.S.C. § 12184 provides: “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.”
[7] O’Hanlon at *2.
[8] Bernard Marr. The Sharing Economy: What It Is, Examples, And How Big Data, Platforms and Algorithms Fuel It. Forbes, (Oct. 21, 2016) https://www.forbes.com/sites/bernardmarr/2016/10/21/the-sharing-economy-what-it-is-examples-and-how-big-data-platforms-and-algorithms-fuel/#e4ce6d77c5af.
[9] 42 U.S.C. §12181 et. seq.
[10] Michael Byrne. New Study Quantifies Airbnb’s Widespread Exclusion of Disabled Guests. Vice, (Jun. 5, 2017) https://www.vice.com/en_us/article/8x9nx5/new-study-quantifies-airbnbs-widespread-exclusion-of-disabled-guests.
[11] See Del-Orden v. Bonobos, Inc., 2017 U.S. Dist. LEXIS 209251 at *14 (S.D.N.Y. Sec. 20, 2017).
[12] Helen Christophi. Jude Advances Men’s ADA Complaint Against Uber. Courthouse News Service, (Mar. 1, 2018) https://www.courthousenews.com/judge-advances-mens-ada-complaint-against-uber/; Melissa Locker. Lyft’s Response to ADA Lawsuit: Sorry, we’re “not in the transportation business.” FastCompany, (May 3, 2019) https://www.fastcompany.com/90343921/lyft-claims-its-not-a-transportation-company-to-avoid-ada-compliance.
[13] Locker, supra note 12.
[14] See Nat’l Fedn. of the Blind of Cal. v. Uber Techs., Inc., 103 F. Supp. 3d 1073 (Apr. 17, 2015), Ramos v. Uber Tech., Inc., 2015 WL 758087 (W.D. Tex. Feb. 20, 2015)