California regulators seeking to address sexual harassment and assault in the ride-share industry are moving forward with proposed regulations despite pushback from
The California Public Utilities Commission, which oversees ride-share companies in the state, is set to vote Thursday on adopting new definitions of harassment and assault.
The state says the move will help Uber and Lyft track and report incidents. But ride-share companies and victim advocates alike argue the proposed regulations, based on state criminal and employment law, don’t translate to the gig economy. And failing to adopt the right guidelines will undercut the reporting of assaults and make it harder to provide the right resources to help passengers and train drivers, they say.
The vote is the latest in a years-long battle over ride-share company oversight in California. The focus has been on driver and rider safety and concerns about the CPUC’s lack of expertise in investigating sexual assaults, which number in the thousands annually among rideshare passengers, according to company reports.
“Standardizing definitions is a step in the right direction, but the biggest problem is the proposal doesn’t view the victim as a trauma survivor,” said Stephen Estey, a partner at Estey & Bomberger LLP in San Diego, who represents plaintiffs in sexual assault cases against Uber and Lyft. “The agency is being reactive here. I think they need to look at it from a victim’s perspective and not just a reporting issue.”
“Once you have the data, it’s about prevention,” Estey said. “If you gather all of this data and you don’t pass the knowledge on to passengers, it’s kind of useless.”
The CPUC’s proposed definition of sexual assault, taken from state civil and criminal law, includes “an act by a person who touches or attempts to touch the intimate parts of another,” against the will of the person being touched.
The agency’s taxonomy for harassment includes someone who engages in an act of “unwelcome visual, verbal, nonverbal, or physical conduct,” which creates an “intimidating, hostile, or offensive environment.”
The agency drew its proposed harassment definition from employment law, which it said was “elastic enough” to apply in the ride-share context.
The CPUC similarly looked to the workplace model when setting the proposed minimum investigative requirements that ride-share companies must follow when an assault or harassment is reported.
The requirements outline questions to ask a “claimant,” an “alleged perpetrator,” and “third parties” who may have witnessed or heard about the assault or harassment.
Victim advocates and ride-share companies have urged the CPUC instead to adopt a set of classifications jointly developed by anti-sexual violence organization RALIANCE and the Urban Institute, an economic and social policy think tank.
Uber worked with leading experts and advocates to help develop that taxonomy, which is now open-source and available for use by transportation network companies (TNCs) across the ride-share industry, an Uber spokesperson told Bloomberg Law.
The RALIANCE/Urban Institute taxonomy breaks down sexual misconduct and sexual assault into 21 categories and uses behaviorally specific definitions that are “mutually exclusive and collectively exhaustive,” the organizations said.
Those classifications are significantly more specific, ensure categories don’t overlap, and that all possible scenarios are included, Uber told the CPUC in a public comment.
Meanwhile, the CPUC definitions are over-broad, exclude certain types of assault, and mischaracterize sexual harassment by applying traditional workplace definitions to the gig economy, the Rape, Abuse & Incest National Network (RAINN), said in a public comment.
And investigating sexual assault cases “requires a unique and different kind of training,” said Sandra Henriquez, chief executive officer of ValorUS. The organization opposes the CPUC potentially contacting assault survivors to ask questions about reported incidents, she said.
“We’re really concerned about the possibility of them re-traumatizing people, possibly asking questions that are victim blaming,” Henriquez said. “This is why people have years of experience in investigating sexual assault cases.”
“While we appreciate Lyft and Uber’s suggestions to rely on the definitions developed by RALIANCE and other companies that specialize in identifying and dealing with sexually related claims, we believe that following the direction of our Legislature gives our definitions the clarity and solid legal foundation needed to guide TNCs in determining which claims fit within the sexual assault and sexual harassment taxonomies that must be included in their Annual Reports,” the CPUC said in response to objections.
The CPUC directed a request for comment to the proposal commissioners will vote on Thursday.
The CPUC’s reliance on state employment law is one of the biggest points of contention.
Ride-share companies need stricter definitions than those used in a “non-vehicular workplace,” said Alexandrea Ravenelle, a University of North Carolina sociology professor who studies gig work.
“An inappropriate comment in an office or conference room where others can hear it and respond is very different from that same comment from someone literally speeding you down a dark road at night,” Ravenelle said. “The bar is therefore lower than in a traditional workplace,” she said.
There are several characteristics associated with ride shares that aren’t common in a traditional workplace setting, Estey said. They include alcohol consumption and a driver’s ability to turn on the “child lock” on doors and windows, a common element in cases Estey has litigated.
“The definitions need to be modified in that regard,” he said. “It’s not one size fits all, and traditional employment laws won’t transfer over directly to a ride share scenario.”
Advocacy groups aren’t alone in urging the CPUC to reconsider its proposal.
The CPUC’s Consumer Protection & Enforcement Division’s Transportation Enforcement Branch urged the commission to consider using funds from the recent $9 million safety settlement with Uber to hire a consultant specializing in assault and harassment.
That settlement arose from a two-year fight between Uber and the commission over the company refusing to provide identifying information for some 3,000 people who said they suffered sexual assaults while using the service in 2018. A commission administrative law judge originally proposed a $59 million fine for failing to provide regulators with information that Uber said would violate individuals’ privacy. Instead, Uber was fined $150,000 and the company agreed to pay the fine, contribute $5 million to the California Victim Compensation Board, and put $4 million toward creating industry-wide safety standards and education.
Uber and Lyft, which both urged the CPUC to adopt the RALIANCE taxonomy, voiced “serious reservations” about the CPUC’s proposed definitions. The companies also objected to the CPUC’s proposed training, investigating, and reporting protocols.
“We support the CPUC’s adoption of an industry-wide taxonomy but strongly feel the Commission must adopt the same victim centered, trauma informed taxonomy used in the industry today rather than creating a new taxonomy borrowed from criminal, employment, or insurance contexts that do not adequately reflect these perspectives,” Uber said.
Lyft directed a request for comment to advocacy organizations RAINN, RALIANCE, and ValorUS.