Last week, Buzzfeed reported that the United Spinal Association opposed Uber’s CEO’s nomination for Time Magazine’s Man of the Year award because Uber cars are allegedly not wheelchair accessible. This controversy raises an important and novel question: Are online-only businesses like Uber and Airbnb covered by Title III of the ADA, and what would coverage mean when the businesses don’t own or operate the vehicles or accommodations that customers use?
Uber provides transportation services to the public through a mobile app that connects independent drivers and their vehicles with customers. Uber does not employ the drivers, own any vehicles, or have a physical place of business to serve customers. Airbnb is a similar service for transient lodging. Airbnb, through its website and mobile app, connects renters with people who have overnight accommodations that they want to rent and processes the payment. Like Uber, Airbnb is a web-only business that does not own or operate the actual accommodations that are provided to the public.
Title III of the ADA only applies to owners, operators, lessors, and lessees of “place[s] of public accommodations.” Businesses such as Uber and Airbnb do not fit neatly fit into this definition because, as web-only businesses, they are not actual “places” of public accommodation. Moreover, they don’t own, operate, or the goods or services – the vehicles or accommodations – used by the end customer.
We were unable to find any ADA Title III lawsuits against Airbnb on the federal docket but Uber has been sued several times. In one case, Uber argued that it is not a place public accommodation in an ADA Title III lawsuit filed by the National Federation of the Blind. The case concerns the treatment of service animals by Uber drivers and we blogged about that case previously. The federal court in the Northern District of California refused to dismiss the case on this basis and allowed it to move forward for more fact development. Although the court will revisit this issue after the parties engage in discovery, its initial decision showed a willingness to find that Uber is a public accommodation. The court said that Uber could be considered a “travel service” which is one of the twelve categories of businesses listed in the ADA that are places of public accommodations.
One legal development that may change how the court in the Uber case ultimately rules is the Ninth Circuit Court of Appeal’s binding decision in two ADA Title III cases brought against Ebay and Netflix. The Ninth Circuit had issued its decision in the Ebay and Netflix cases two weeks prior to district court’s ruling in the Uber case. As we discussed in an earlier blog post, the Ninth Circuit held that the websites of online-only businesses are not places of public accommodation subject to Title III of the ADA. Uber would appear to fall within this category of online-only businesses, but the district court did not mention the Ninth’s Circuit decision in Ebay and Netflix at all.
If the case moves forward to trial (currently set for April 2016) and the court finds that Uber is a place of public accommodation, the court will have to decide what obligation, if any, Uber has to provide access to wheelchair accessible vehicles when it does not own or operate any vehicles or employ any drivers. If this case follows the path of most ADA Title III cases, it will settle before we get a ruling.