Every single user of Uber’s on-demand ride-hailing service agrees to its “Terms of Service”. Most users do not bother to read the content of those terms of service, simply because accepting the terms is a prerequisite for using Uber. Buried in those terms, however, is what is known as “binding arbitration” in resolving issues and disagreements with the company that states the user will have no right to pursue a resolution through the court system.
Uber had, until recently, enforced that clause relentlessly and regardless of the case. However, an investigation by CNN found that Uber enforced that clause against individuals who claimed they had been assaulted, sexually or otherwise, by Uber drivers. The investigation found at least 108 cases where this had been the case and concluded that more cases probably existed. Because of the intentionally opaque nature of their system of arbitration, the actual statistics were unclear.
Since the findings of that investigation were released, Uber indicated that it will no longer enforce that arbitration clause against victims of sexual assault, whether they are riders, drivers, or employees of the company. Additionally, the company will no longer require that parties to any complaint enter into confidentiality agreements as part of any settlement.
This decision by Uber is a change that will allow victims of sexual assault to pursue their assailants by whatever means they deem necessary. Shining a light of sexual assault, regardless of where it happens, is necessary and Uber’s change should be a change made by any company seeking to enforce binding arbitration on sexual assault victims.
From a legal standpoint, contracts such as the “Terms of Service” agreed to by all Uber users can be broadly classified as “contracts of adhesion”. Contracts of adhesion – also known as “take it or leave it” contracts – are ones where the terms are set by one party where the other party has little to no ability to negotiate or change terms. Terms of Service are considered a contract and anyone who has used Uber knows that the terms must be agreed to before you can use the service. Either you accept the terms and use the service, or you do not accept, and you do not ride. These contracts are not illegal per se, but they are generally frowned upon by courts that seek to interpret language in favor of the non-drafting party.
Uber’s Terms of Service – specifically, the arbitration clause – has been challenged in Court numerous times and suffered several defeats, which added to Uber’s willingness to back down from enforcing the clause. The next time you are faced with clicking the box “I accept” next to the terms of service, stop and take a minute to skim through the language. You may be surprised at what you find.
Goldstein and Bashner
