BY SAMUEL MAXWELL
Concurrent with the rise of TNCs, passenger safety has been thrust into the conversation. A quick search of these companies yields hundreds of articles about alleged rapes, kidnappings, assaults, and more. As a result, some companies have launched by featuring gender-specific drivers or catering to certain groups, while also sparking questions about legality of services.
The question of whether a rider may insist on a driver of a particular gender was raised in a lawsuit filed in 2016 after Saudi Arabian Prince Abdul-Rahman bin Abdul-Azizi insisted on only male drivers from the three transportation companies his staff hired. Gretchen Cooper, Barbara Herold, and Lisa Boutelle were among 40 drivers hired to drive the prince and his entourage in October 2010 while he was receiving treatment at the Mayo Clinic in Rochester, Minn. When the three women showed up for their second day of work, they were asked to return their keys and were told, “No women drivers,” and their three respective companies removed them from the monthlong lucrative contract work. According to the Human Rights Watch, Saudi Arabia remains the only country that prohibits women from driving.
The three women filed suit, alleging they were fired because of their gender in violation of Title VII, 42 U.S.C. § 2000e-2, the Minnesota Human Rights Act (MHRA), Minn. Stat. § 363A.08, and Minnesota tort law. On November 4, 2015, the court granted their motion for default judgment and held a hearing on their claims for compensatory damages. After determining their lost wages to be $15,000, the court awarded each of the plaintiffs $30,000 under the MHRA, which allowed the court, in its discretion, to multiply the actual damages. The court granted each plaintiff $100,000, the amount each requested for her mental anguish and suffering, but declined to award punitive damages under Title VII to the plaintiffs. Although the defendants had acted unlawfully, the plaintiffs had not demonstrated that they had also acted with the requisite “deliberate disregard or malice.” Two of the three companies settled before going to court; the third was named in the lawsuit.
This case strikes at the heart of an issue that persists throughout the country: Women comprise approximately 12 percent of the drivers in the taxi and livery industry, but represent approximately 60 percent of the riders. According to a 2015 Forbes article, only 14 percent of U.S. Uber drivers are women, despite a highly publicized effort to recruit more female drivers. Uber’s hiring practices have come under scrutiny after allegations of sexual harassment and sexism surfaced, and its recently released report on diversity depicted an overwhelmingly male and largely white workforce.
Companies of on-demand service have popped up to meet these market forces, namely hiring female drivers exclusively or only accepting female passengers. Not surprisingly, these services have faced legal and discrimination challenges.
SheTaxis, also known as “SheRides,” was launched in 2014 to address the issue of underrepresentation of women in the taxi industry in New York City. SheTaxis created an application that matched the company’s drivers with female riders, with the stated mission to empower “both women behind the wheel and in the passenger seat.” During its launch, the company announced plans to hire 500 female drivers to ensure that female riders would have a safe and affordable ride with drivers whom they could trust while creating additional employment opportunities for women. According to a report in the New York Times, anyone could use the application, but only parties including at least one woman could specifically request a female driver. Male passengers would be referred to another company, according to its website.
This business model, however, did not go unnoticed by the New York City Human Rights Commission. According to a 2014 NY Daily News article, prior to the application’s launch, then-Commissioner Patricia Gatling said: “Under the NYC Human Rights Law, it is illegal for a public accommodation (a provider of goods and services) to deny service based on a protected class or to express a preference for one protected class over another.” The company website is still available, and is listed as an “active” corporation on the New York Secretary of State’s business entity database, although the fate of its app is unknown as it faces legal challenges from Apple.
“Although the safety of female passengers and drivers is an important issue for the industry, as is diversity, the gender-based efforts by companies like SheTaxis and Safr to address these issues are likely to face legal challenges...”
Safr, also known as “Chariots for Women,” a 2017 Boston-based start-up, allows women to choose the gender of their driver before they are picked up and allows its female drivers to specify the gender of the passengers they prefer. Safr’s website touts: “Man or woman, we’ll get you where you need to go safely. Choice, it’s how it should be,” but it disclaims that it denies service on the basis of gender. Instead, Safr insists that its gender-based service simply gives users “the power to create a safer environment in which to travel.”
Although the business model adopted by SheTaxis, Safr, and similar applications such as SeeJaneGo addresses the issues of safety and empowerment for female passengers and drivers, the gender-based approach necessarily implicates state and federal anti-discrimination laws with potentially significant financial consequences for the taxi and livery industry.
SheTaxis initially skirted the issue by not hiring directly, but working with transportation companies and dispatching as needed. The company quickly faced a shortage of available female drivers in its pool. As the ruling in the Minnesota federal case demonstrated, an employer’s refusal to employ female drivers on the basis of their gender is qualitatively no different than its refusal to hire employees on the basis of race, religion, sexual orientation, or disability. A company’s effort to hire female drivers over male drivers to attract more female riders is subject to a similar challenge.
Additionally, the intentional refusal to accept riders on the basis of a protected characteristic, including gender, likely runs afoul of anti-discrimination laws, as evidenced by a widely publicized decision of the New York City Human Rights Commission.
This, of course, raises a question of whether a transportation company in this industry could assign a specific gender of chauffeur upon client request. It would not be a violation to accommodate the client with their preferred chauffeur, but it could certainly be challenged to deny a chauffeur the run based solely on gender, if all other factors were equal.
According to a 2015 report in the New York Times, Baquir Raza, a New York City cab driver, had dropped off passengers, but when an African-American woman and her two daughters started to enter the cab, he told them he was going off duty. After the woman saw Raza stop to pick up two Caucasian women down the block, she filed a complaint with the New York City Commission on Human Rights, claiming Raza refused her a public accommodation based on her race and color in violation of the City’s anti-discrimination law. Raza was ordered by an administrative law judge to pay her $10,000 in damages for her emotional distress and to pay a civil penalty of $15,000, over his objection that he should only be subject to regulation by the Taxi & Limousine Commission, whose fines were generally limited to a few hundred dollars. Although the Commission subsequently reduced the award of damages to $7,000 and required Raza to work for 229 hours with the Commission’s Community Relations Bureau to educate taxi drivers on the city’s anti-discrimination law in lieu of the civil penalty, the financial consequences for Raza, whom the commission described as having only “five employees and ... barely breaking even,” were severe.
Although the safety of female passengers and drivers is an important issue for the industry, as is diversity, the gender-based efforts by companies like SheTaxis and Safr to address these issues are likely to face legal challenges in the absence of legislation exemption from state and federal anti-discrimination laws, such as M.G.L. c. 272A, §92A, which allows “bona fide” fitness centers to limit membership to persons of the same gender. [CD0917]
Disclaimer: The foregoing is provided solely as general information, is not intended as legal advice, and may not be applicable within your jurisdiction or to your specific situation. You are advised to consult with your attorneys for guidance before relying upon any of the information presented herein.
Samuel Maxwell is an associate with the law firm Jackson Lewis. He can be reached at samuel.maxwell@jacksonlewis.com.