Ride-sharing giants Uber and Lyft patted themselves on the back this week for adopting a totally #MeToo policy that victims of sexual assault and harassment won’t be held to the companies’ forced-arbitration requirement and will be able to seek their day in court.
“We have learned it’s important to give sexual assault and harassment survivors control of how they pursue their claims,” Tony West, Uber’s chief legal officer, said in a blog post.
He said the company will allow such people to sue rather than arbitrate and will not hold them to any confidentiality agreements. “They will be free to tell their story wherever and however they see fit,” he said.
Lyft promptly declared itself on board with that, declaring: “We agree with the changes and have removed the confidentiality requirement for sexual assault victims, as well as ended mandatory arbitration for those individuals.”
These are laudable moves.
They’re also not good enough. Not even close.
When you get to the fine print of each company’s announcement, you see that Uber and Lyft are still concerned as much with protecting themselves as they are with protecting victims.
While the companies get points for allowing some customers to sue, they’re still denying people the right to join others in class actions, which can be far more costly to businesses than individual lawsuits.
They’re also still requiring people to secretly arbitrate any dispute that doesn’t involve sexual assault or harassment, even though they’ve acknowledged that going to trial can be preferable for people with a story to tell.
“The ability to join in a class-action lawsuit is very important,” said Barbara Hadsell, a Pasadena lawyer who specializes in sexual harassment and civil rights cases. “It sends a much larger message.”
The changes by Uber and Lyft came two weeks after CNN reported that at least 103 Uber drivers in the United States have been accused of sexually assaulting or abusing their passengers over the last four years.
“The drivers were arrested, are wanted by police, or have been named in civil suits related to the incidents,” a CNN investigation found. “At least 31 drivers have been convicted for crimes ranging from forcible touching and false imprisonment to rape, and dozens of criminal and civil cases are pending.”
Hadsell told me that allowing sexual assault victims to seek redress in court if so desired is a very big deal, as is freeing women from confidentiality agreements in the event of settlements.
But she said class actions are crucial in situations in which there may have been harassment or abuse but no physical assault. Under such cicumstances, a woman might be reluctant to go through the time and expense of pursuing an individual lawsuit.
A class action, on the other hand, in which people with shared grievances band together, can hold a company accountable for relatively minor issues that nevertheless reflect negligent corporate practices, such as not sufficiently vetting drivers.
“Going forward as a class sends a different but similarly important message,” Hadsell said. “It shows that it’s not just one woman or one crazy driver. It says something is wrong with the company.”
When Uber and Lyft customers download each company’s app, they have to agree to the terms of service. Those terms stipulate that if you have a legal beef, you have to resolve it through private arbitration and can’t join any class actions.
Gloria Allred, the Los Angeles lawyer who has squared off against President Trump and Bill Cosby (and seemingly every other high-profile man accused of treating women horribly), told me that class actions may be the only way many victims of sexual harassment can seek justice.
“Most plaintiffs’ lawyers aren’t going to take the case unless there are significant damages,” she said. “It’s not going to be worthwhile to file a lawsuit and possibly litigate for years.”
A class action, Allred said, allows women to unite in pursuing accountability in situations in which the harm may not rise individually to the level of significant damages, but on a combined basis can make for a meaningful case.
I reached out to Uber and Lyft with questions about why class actions had been excluded from each company’s go-ahead-and-sue policy switch. Spokeswomen for both companies agreed to speak only on background, which means anonymously.
The Uber spokeswoman said “a lot of thought and review” went into the company’s decision, and that “the heart of the issue is that we want to make sure victims and survivors are free to speak out.”
When I asked why not apply that same thinking to class actions, she said a big chunk of class-action settlement money ends up in lawyers’ pockets, which is true, and “the decision was made for victims, not for lawyers.”
Lyft’s spokeswoman would only confirm that the company “still preserves its ability to compel arbitration in the class-action context.” I asked why but received no answer.
Every attorney and consumer advocate I spoke with commended the two companies for at least doing something. Uber and Lyft deserve recognition for moving in the right direction, they said.
“But they could have done more to level the playing field,” said Christine Hines, legislative director for the National Assn. of Consumer Advocates. “They should allow all other legal complaints to also be heard in open court, and they should stop banning their customers and workers from participating in class actions.
“Requiring that complaints go forward one by one, in forced arbitration or in court, often works out better for corporations accused of pervasive misconduct than for their victims.”
It seems pretty simple to me. If Uber and Lyft are saying that there’s merit to having your day in court, even for primarily cathartic reasons, it’s disingenuous to continue denying many people a right to sue.
Some victims of sexual abuse deserve the sunlight of a public hearing but others do not?
Victims of other bad practicies, such as, say, systemic overcharging, have no right to join forces in seeking accountability?
Yes, class actions can enrich lawyers. I’d have no problem with limiting lawyers to 10% of a settlement rather than their customary third of the take.
But that unfortunate quirk of our legal system doesn’t mitigate the usefulness of class actions as powerful tools for holding a company’s feet to the fire.
“Our message to the world is that we need to turn the lights on,” Uber’s West wrote in his blog post. “It starts with improving our product and policies, but it requires so much more, and we’re in it for the long haul.”