Airbnb Inc. recently announced it would no longer force its employees who filed sexual harassment lawsuits to settle their claims in private arbitration. The notice came only days after Google and Facebook made similar announcements concerning policy changes about sexual harassment, including ending forced arbitration for such claims. Google’s announcement followed a 20,000 employee walkout protesting the company’s handling of sexual misconduct allegations. As previously discussed on the blog, in May of this year, Uber and Lyft became two of the first gig companies to waive mandatory arbitration and remove the confidentiality requirement for sexual assault and harassment victims (for passenger, driver and employee claims).
Just last month, Uber announced that it would no longer require its passengers, drivers, or employees to arbitrate their individual claims of sexual assault and sexual harassment, allowing such claims to proceed in court. Uber’s Chief Legal Officer Tony West stated in a blog post: “We have learned it’s important to give sexual assault and harassment survivors control of how they pursue their claims. 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.” Uber will also no longer require those who settle sexual assault or harassment claims to sign non-disclosure agreements. Hours after Uber’s announcement, Lyft announced that it, too, would waive mandatory arbitration and remove the confidentiality requirement for sexual assault and harassment victims.
For many years, men have earned more than their similarly situated women counterparts. This statement is no surprise. In 2016, the National Bureau of Economic Research released a white paper suggesting that women earn only 89 cents for every dollar a man earns. This is nothing new in the traditional workplace model. However, is this statistic applicable to the gig economy?
In a follow-up to our discussion earlier this summer regarding discrimination and the sharing economy, the California Department of Fair Employment and Housing (DFEH) recently settled a charge of discrimination with a sharing economy rental market host who allegedly made disparaging racial comments and canceled a guest’s reservations as the guest was traveling to the property in a snowstorm.
Recent studies have reported that race and gender disparities are not uncommon in the sharing economy. For example, it’s been reported that some gig workers were discriminating against customers with names that “sounded Black.” Women and workers of color are more likely to garner negative reviews from customers. And now, a recent study found that people with disabilities are more likely to be rejected through Airbnb than their comparators without disabilities. The study, conducted by Rutgers University, found that 75% of travelers who made no mention of a disability were granted pre-approval. For those who mentioned a disability, the pre-approval rate dropped from anywhere between 25% to 61% depending on the disability.
When the EEOC published its Strategic Enforcement Plan for 2017-2021 in October, the EEOC had identified “complex employment relationships” as an area it wished to explore more closely in the coming months and years. In the Plan, the EEOC specifically identified in its “Developing Issues” category: “clarifying the employment relationship and the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures, including temporary workers, staffing agencies, independent contractor relationships, and the on-demand economy.” More recently, the Chair of the EEOC reiterated the EEOC’s interest in focusing on issues relating to gig and other contingent workers.
There has been significant buzz lately regarding the risk of discrimination in the sharing economy. Not only has the Equal Employment Opportunity Commission (EEOC) published its intent to prioritize protections in the on-demand economy in its recently published Strategic Enforcement Plan, but sharing economy businesses have faced additional scrutiny surrounding response times to customers of different races.
Earlier this year, Arizona Congresswoman Martha McSally, announced the formation of a new working group, comprised of Ms. McSally and several of her Republican colleagues, called the “Working Group on Women in the 21st Century Workforce.” By way of background, McSally spent 26 years in the U.S. Air Force before being elected to Congress. While in the Air Force, McSally was the first woman to fly in combat, as well as the first to command a fighter squad in combat.
As my colleague Brooke Tabshouri pointed out earlier this month, one of the unique situations facing the sharing economy is that customers — not coworkers or employers — may be the primary or even sole bad actors when it comes to harassment and discrimination against independent workers.
The sharing economy is attractive to many transgender employees who fear discrimination in traditional workforces. But are sharing economy employers required to provide them with any special protections? With the employment status of workers in the sharing economy in legal limbo, a question facing many employers is whether state and federal antidiscrimination laws apply to workers. Some states, such as California, specifically protect transgender individuals, and so any discriminatory action by a customer against a transgender individual will be prohibited by law. In most states, however, the situation is less settled.