Disability Rights and the Sharing Economy Kara Janssen

Disability Rights and the Sharing Economy Kara Janssen, Associate Rosen Bien Galvan & Grunfeld LLP

Introduction • New services such as Airbnb, Uber, and Lyft have opened new doors for travelers with disabilities but also created new problems. • Companies innovate rapidly and constantly and can fail to keep track of access requirements in each new idea incorporated into the App or business. • The “shared economy” business model poses unique challenges because they rely on third-parties to provide the actual services and these third-parties can enter or exit the company at any time.

Overview This presentation will discuss issues raised by services including: • What laws apply to these new services? • How do arbitration agreements in these apps affect the rights of people with disabilities? • What accommodations do these apps currently provide for people with disabilities? • Where is there work to be done to increase accessibility?

What is the “Sharing Economy” “Sharing” of services between private individuals based on an online “app” that connects to real-world services • Uber/Lyft rely on private drivers using their own car to provide taxi services • Airbnb allows individuals to rent their homes or a room in their home • Task. Rabbit allows users to connect with others who will perform errands or other tasks Who is providing the service? Line can be blurry. • Litigation underway re: whether drivers are “employees” • Uber/Lyft set rates & regulate drivers in myriad ways • Airbnb sets policies for hosts, addresses complaints, rebook users if needed, and recover money from each listing

What Laws Apply to the Sharing Economy?

Applicable Disability Laws Federal Law: Title III of the Americans with Disabilities Act California State Law • Unruh Civil Rights Act All persons with disabilities in California “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. ” Cal. Civ Code § 51 • Disabled Persons Act Persons with disabilities must be given “full and equal access” to hotels, lodging, and all “other places to which the general public is invited” Cal. Civ Code § 54. 1(a). Laws linked to federal or state funding, such as the Rehabilitation Act and California Government Code section 11135, will typically not apply

Title III of the ADA “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. ” 42 U. S. C. § 12182. • Examples: places of lodging (hotel, inn); places of recreation (park, zoo); places of exercise (gym, golf course); service establishment (bank, barber, travel service); sales or rental establishment (bakery, shopping center) among others

General Provisions – ADA All private entities, including travel services, are required to: • Make reasonable modifications in policies, practices or procedures unless would fundamentally alter nature of service • Provide auxiliary aids and services unless would fundamentally alter nature of service or result in undue burden • Remove architectural barriers and communication barriers that are structural in nature where readily achievable Additionally, cannot impose eligibility criteria that screen out/tend to screen out people with disabilities unless necessary for the service being provided.

Requirements for Places of Lodging • Guests with disabilities must be able to reserve accessible rooms in the same manner as others. • Accessible features must be described in sufficient detail to permit guest to assess whether will meet his/her needs. • Priority for accessible rooms given to guests with disabilities. • Physical barriers should be removed where “readily achievable” i. e. rearranging furniture, clearing paths of travel, changing floor coverings, offset hinges to widen doorways, installing ramps • Do not apply to owner-occupied residences maintained solely for residential use.

Requirements for Transportation Services Fixed Route - Bus service, Hop on Hop off tours, shuttles • With few exceptions, must be physically accessible • Examples of App-Based Services: Leap, Chariot Demand Responsive - 42 U. S. C. § 12181(3) • Taxis, including Uber & Lyft, on-demand shuttles, charters Not required to be physically accessible unless a “new van” • Must provide “equivalent service” – can do so by contracting with accessible vehicle provider All transportation services must allow service animals, make reasonable accommodations, and permit wheelchair users who can use vehicle to do so.

NFB of CA v. Uber Service Animals • NFB of California and three NFB members bought suit in federal district court in San Francisco alleging violations of Title III, Unruh Act, and Disabled Persons Act • Court denied Uber’s motion to dismiss and parties reached settlement o Court noted Congress clearly intended for “service establishments” to include providers of services who do not require persons to physically enter an actual physical structure • Settlement Class: All blind or visually disabled individuals nationwide who travel with the assistance of service animals and who have used, attempted to use, or been deterred from attempting to use transportation arranged through the Uber rider app.

NFB of CA v. Uber Service Animals - Settlement Under settlement, Uber will: • Require existing and new drivers to expressly confirm they understand legal obligations to transport riders with service animals • Implement stricter enforcement policies and remove a driver from the platform upon a single complaint if Uber finds driver knew or should have known animal was a service animal but denied ride. o If Uber receives multiple complaints driver permanently removed regardless of intent. • Enhance response system for complaints regarding service animal discrimination and allow complaints to be submitted directly through the app and website • Track data on complaints and send aggregated data to Class Counsel.

NFB of CA v. Uber Service Animals - Settlement • NFB and CA Affiliate will deploy testers over a multi-year period to evaluate Uber’s compliance & Uber will pay $75, 000 annually to NFB to support testing program • 3. 5 year monitoring period which can be extended to 5 years if Uber not in substantial compliance • Third Party Monitor will review and analyze data provided by Uber and if Monitor finds evidence of discrimination will propose further policy modifications to improve access.

Ramos v. Uber Physical Access Lawsuit filed in W. D. Texas against Lyft & Uber for failure to provide wheelchair accessible vehicles and proper training to drivers • In response to Uber argument that it “has no ability to require App users to modify their personal vehicles or control the conditions under which they operate” court found that Uber and Lyft control: o Whether a user can identify as having a disability o Whether a user can request a specific type of vehicle o How to connect drivers who choose to modify their vehicles or have an accessible vehicle already with users who need one

Access Living v. Uber • Filed in the Northern District of Illinois on October 13, 2016 • Alleges that Uber offers a travel service that is unusable for people who require wheelchair accessible vehicles. o Based on Uber’s failure to offer “equivalent service” which requires equivalent response times, service areas etc. o In Chicago, Uber offers Uber. TAXI to provide wheelchair accessible vehicles, this is essentially just a referral to traditional taxi companies that may have wheelchair accessible vehicles

Lyft Structured Negotiation • We are working with Disability Rights Advocates and TRE Legal in structured negotiations with Lyft to ensure that riders with disabilities who use service animals are able to access transportation services offered by Lyft drivers. • Agreement reached in January and further announcements will be forthcoming as soon as we can share.

Arbitration Agreements How These Agreements Affect the Rights of People with Disabilities

Arbitration Agreements • Accepting the “Terms of Service” in an app or online typically happens virtually automatically when you create an account. • These terms almost always include an agreement to arbitrate any disputes. • This means you cannot go to court if your rights are violated and typically that you cannot participate in or file a class action. • Does not apply to individuals who use the services as the guests of account holders.

Currently Available Accommodations & Issues To Look Out For What You Need to Know When Using These Apps

Airbnb • You are allowed to bring your service animal to an Airbnb • You cannot be denied service due to a disability • Airbnb. com does allow you to search for “wheelchair accessible” listings and you can also search for hosts who know ASL • You have the right to file a complaint if you are denied service or if the listing does not match what you were told about its accessibility We are currently working with CFILC and CCB to collect examples of experiences with Airbnb from travelers with disabilities.

Uber/Lyft • Service animals allowed regardless of whether driver has a fear of dogs, is using a rental car, or is allergic. o Public accommodation may ask an individual to remove a service animal from the premises if the animal is out of control and the animal’s handler does not take effective action to control it. 28 C. F. R. § 36. 302(c) • If you use a wheelchair and can transfer into the vehicle the driver must allow you to do so and must safely stow your wheelchair • You have the right to file a complaint if you experience a problem through the app or website

Issues to Look Out For • Accessibility of mobile apps and websites • Individual drivers or hosts who are not complying with company requirements including refusing service animals • Ability to request a wheelchair accessible vehicle • Inaccurate information on Airbnb listings – more detail still needed on what “wheelchair accessible” means • Education of individuals drivers and hosts on needs of people with disabilities and legal requirements • Accessibility and effectiveness of Complaint Process

Contact Information Kara Janssen Rosen Bien Galvan & Grunfeld LLP Email: kjanssen@rbgg. org Phone: (415) 433 -6830