Men Suing Uber, Lyft Over Women’s Safety Feature Bet on Novel Claim

Lawsuits accusing Uber Technologies Inc. and Lyft Inc. of discriminating against male drivers through app features aimed at keeping women safe present a unique gig economy test for California’s broad public accommodations law.

Two proposed class actions under California’s Unruh Civil Rights Act are challenging the companies’ matching programs allowing women passengers to request women drivers.

They claim these programs limit the male drivers’ income and job opportunities, as well as reinforce gender stereotypes that men are dangerous. The lawsuits seek $4,000 for each male driver, whose numbers could reach into the hundreds of thousands.

“It’s a novel program that’s really going to test the scope of the act,” said Joseph McNally, who litigates cases at the intersection of technology, privacy, and public accountability at McNicholas & McNicholas LLP. “Judges are humans, and when looking at a program involving safety, they’re going to want to make sure that they kick the tires on it before they conclude that it runs afoul of the law.”

The cases come as the ride-share giants continue to defend against litigation filed by women alleging they were sexually assaulted by male drivers. A trial on that issue—only the second case against Uber to reach a jury—is currently proceeding in an Arizona federal court, with a verdict expected in coming weeks.

Attorneys say the male drivers’ lawsuits will turn on exceptions to California’s law and whether the companies can show the driver-rider matching program is the “least restrictive” means to ensure the safety of women passengers.

But those women, lawyers say, also have their own protections against sexual harassment under the same state law.

“One of the arguments in some of those sexual assault cases is the allegation that Uber knew that actions like assigning female riders to female drivers would reduce assaults, but they failed to implement that program,” Sara Lewenstein, a labor and employment law attorney at Nilan Johnson Lewis PA, said.

“You have one group of people saying that Uber is negligent for not having this type of gender-matching program, and then these plaintiffs are saying that it’s discriminatory to implement that solution,” she added. “I don’t think both things can be true.”

Narrow Exceptions

The California Supreme Court has interpreted the Unruh Civil Rights Act broadly to ban all sex discrimination by private and public entities. The public accommodations law allows very limited exceptions for organizations with highly selective membership processes and religious institutions.

Its plain text “really doesn’t create an exception” for the type of matching feature offered by Uber and Lyft, McNally said.

Companies may justify differential treatment of men and women if supported by compelling business or societal interests recognized by law, according to attorneys and legal scholars.

Uber and Lyft are expected to argue that their matching programs are essential for passenger safety. But courts must weigh that defense against evidence that the features resulted in discrimination against male drivers, attorneys said.

“It’s not a question of whether there’s a problem that these entities are looking to address,” said Melanie Ronen, chair of Stradley Ronon Stevens & Young LLP’s employment practice. “The question is going to be whether or not this is the appropriate way to address those challenges.”

McNally said the analysis will require the court to consider whether less restrictive alternatives could improve safety for women drivers and passengers without relying on exclusionary policies that may reinforce negative gender stereotypes.

Elizabeth Tippett, an employment and technology law scholar at the University of Oregon School of Law, said nondiscriminatory options exist to address women’s safety, such as robust background checks and complaint reporting systems.

If the cases go to trial, the companies may have an opportunity to present data showing patterns of violence between male drivers and female passengers, or between female drivers and male passengers, at specific times or locations such as bars, legal scholars said.

The male drivers are represented by Consovoy McCarthy PLLC, a boutique firm known for advancing conservative causes. The firm and Lyft didn’t respond to requests for comment. Uber declined to comment.

Proposition 22

Uber, Lyft, and other gig companies spent millions and scored a major victory in 2020 when voters approved Proposition 22, a measure classifying app-based drivers as independent contractors rather than employees.

The distinction is meaningful, in part, because the drivers wouldn’t be covered by workplace anti-discrimination laws. However, Prop 22 gave drivers an anti-bias remedy under the Unruh Act.

“Prop 22 does not include a catch-all prohibition on ‘discrimination’ on the basis of sex,” but rather addresses refusal of contracting with, terminating the contract of, or deactivating a driver from the network, Tippett said.

She said she anticipates Uber and Lyft will argue their safety features don’t constitute a refusal to contract with drivers.

The plaintiffs, however, may insist that restricting ride opportunities based on sex is equivalent to a refusal to contract.

“That’s going to be novel to figure out,” Tippett said.

The cases are Almond v. Uber Technologies Inc., Cal. Super. Ct., No. CGC25630922 and Kennedy v. Lyft Inc., Cal. Super. Ct., No. CGC25630920.