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By Chris Opfer
Uber Technologies Inc. recently said it wouldn’t force riders who allege sexual assault by drivers to take their cases to arbitration. Later the same day, the company asked a judge to make a group of women do just that with some of their claims.
Uber is no longer fighting to keep a federal judge from hearing assault and battery claims by nine unidentified women who said they were raped or otherwise assaulted by drivers. But the company still wants the women to pursue separate, individual cases before private arbitrators on allegations that Uber falsely marketed safe rides to users despite refusing to adequately screen drivers.
“They did this purely as a publicity play, knowing full well it didn’t mean anything,” Jeanne Christensen, the women’s attorney, said of Uber’s May 15 announcement that it wouldn’t try to force them to arbitrate the assault and battery claims. “They’re trying to gut the lawsuit by saying instead of one suit we’re going to have nine.”
Tony West, Uber’s chief legal officer, announced in a blog post the company’s decision to soften its stance on arbitration for civil sexual assault claims. He also said the company won’t try to convince women alleging assault to keep their claims confidential.
West told Bloomberg Law in a statement that the move doesn’t apply to class actions but “impacts the near entirety of assault claims we see on our platform.”
“We’ve heard over and over from the dozens of advocacy groups we’ve spoken with that few experiences deprive an individual of control more than sexual assault or sexual harassment,” West said. “And we’ve heard what’s most important is for us to restore some sense of control to survivors—whether that’s by giving them a choice of venue in which to pursue their individual claims, or to free them from confidentiality provisions that prevent them from telling their stories if they choose. So while these changes may not please everybody, we believe they represent important steps forward that will ultimately help us all prevent sexual assault more effectively.”
“So moving forward, survivors will be free to choose to resolve their individual claims in the venue they prefer: in a mediation where they can choose confidentiality; in arbitration, where they can choose to maintain their privacy while pursuing their case; or in open court,” West said. “Whatever they decide, they will be free to tell their story wherever and however they see fit.”
The group of Uber riders sued the company in November, alleging that each of the nine women were assaulted or raped by Uber drivers. Some of those women were intoxicated at the time of the incidents. One woman said the driver carried her from the car into her home where he proceeded to rape her.
Uber classifies drivers as independent contractors, rather than employees, but the lawsuit alleges that the drivers act as agents for the company.
Uber users are required to check a box signaling that they agree to certain terms and conditions before they can download the smartphone application that connects them to drivers. The terms include an agreement to take any disputes to arbitration, instead of a federal or state court. After Uber announced it would waive that requirement for riders accusing drivers of sexual assault, the company said it won’t enforce similar restrictions on drivers and Uber employees alleging sexual harassment on the job.
Christensen thinks the company is pushing arbitration of the unfair competition and consumer fraud claims to avoid litigating publicly the question of whether the company knew or should have known about driver assault risks and took adequate steps to address it.
“They don’t want the discovery to come in about all of the other incidents,” Christensen told Bloomberg Law. “We’re trying to show there is a pattern, that they’ve known all along how often this is happening and that they didn’t even do anything about drivers that had multiple complaints against them.”
West said in the blog post that the company “struggled” with the decision to partially waive arbitration for a number of reasons, including what he said is a lack of reliable data on sexual assault and harassment.
“There is no data to reliably or accurately compare reports against Uber drivers versus taxi drivers or limo drivers, or Uber versus buses, subways, airplanes or trains,” West said.
Uber announced in April that it would beef up rider safety protections, including by more frequently running driver background checks. The company has resisted calls to fingerprint drivers, saying those fingerprint checks could perpetuate discrimination because they are based on arrests rather than convictions. Uber checks criminal records using driver’s names, Social Security numbers, and drivers license information.
Christensen said Uber is also trying to avoid a class action by limiting the federal court case to the individual assault and battery claims, which the judge may decide to separate. She said she raised the unfair competition and consumer fraud claims in part to support bringing the lawsuit as a class action.
“Negligence for individual assaults doesn’t lend itself to a class action in the way that a consumer fraud law does,” Christensen said. “I’d be pleading different causes of action if they said you have to litigate those individually.”
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