• Judge finds evidence driver was acting as in Uber’s employment
• ‘When did you lose your virginity?’ teen recalls being asked
A judge refused to let Uber Technologies Inc. off the hook over a high school student’s claims that her driver made lewd comments to her — marking another rejection of the company’s argument that it isn’t responsible for drivers’ actions.
Tuesday’s ruling allowing the 16-year-old’s assault and false imprisonment claims to proceed adds to the ride-hailing giant’s legal vulnerability over driver misconduct with passengers.
In finding sufficient evidence that the driver was “acting in the course and scope” of his employment with Uber, the San Francisco state judge relied in part on a recent decision by California’s highest court that threatens to upend the gig economy’s business model by requiring many more workers to be treated as employees. Uber’s lawyer tried to withdraw the company’s request for dismissal of the teen’s claims so that the decision wouldn’t be put on the books, but the judge wouldn’t allow it at a hearing Tuesday.
Uber and rival Lyft Inc. both announced Tuesday they will no longer try to shunt complaints about sexual assaults into closed-door arbitration amid mounting pressure from the MeToo movement for more transparency in how such matters are handled. Uber also said it plans to release data on sexual violence and other dangerous incidents that occur on its ride-hailing service.
The ruling isn’t the first to reject the company’s assertion that it categorically can’t be blamed for assaults by drivers, who it classifies as contractors rather than employees. A federal judge in May 2016 reached the same conclusion early in a case brought by two women who alleged they’d been assaulted in East Coast cities. That ruling, like Monday’s, didn’t address the merits of the lawsuit. Uber later reached a confidential settlement with the women.
The unidentified student alleged that her driver pulled onto the shoulder of California’s Highway 101 south of San Francisco and beckoned her to the front seat before asking her explicit sexual questions. When they arrived at her home, the driver pointed to his crotch and made another lewd comment — and she fled into the house, according to the complaint.
The circumstances described in the suit are adequate to support an assault claim because the logical consequence of the driver’s actions was “offensive touching,” Superior Court Judge Harold Kahn said. The teenager said the driver asked her questions such as “When did you lose your virginity?”
The narrative of the complaint also implies a “threat of force” that supports a claim of confinement against one’s will, the judge said.
Uber’s lawyer argued there was nothing in the complaint to back up the claims ofassault or false imprisonment, saying the girl got into the front seat of the car voluntarily.
Kahn disagreed. He noted that the driver had pulled over on the shoulder of a freeway before asking the girl to get into the front seat. “If she doesn’t do what he says, how does she know what he is going to do to her on the side of the road?” he said.
A separate claim seeking to hold Uber responsible for “violence based on gender” was dismissed. Kahn said there’s no allegation that Uber personally committed the violence. The complaint also includes claims for negligence and fraud that weren’t addressed in Uber’s request for dismissal.
Uber’s lawyer declined to comment after the hearing.
The teen said in the complaint that when she reported the incident to Uber, the company said it would investigate. Then she was told her account was being disabled because minors aren’t allowed to use the app and Uber refunded her $13.07 for the ride, according to the complaint.
Her lawyer said Uber initially refused to disclose the name of the driver, either to her family or to the San Mateo Police Department.
“We filed this lawsuit to get the name of this driver so he could be held accountable,” said the attorney, Jessica Dayton.
The driver, Gaspar Galvez Cortes, who was named as a defendant in the suit, lost his own bid Monday for dismissal of the claims against him in a tentative ruling. His attorneys, David Byassee and Morgan Piercy, didn’t immediately respond to requests for comment.
In his ruling, Kahn cited the 2016 analysis by U.S. District Judge Susan Illston, who found that sexual misconduct by an employee doesn’t, as Uber argued, always “bar vicarious liability on the part of the employer.”
Kahn also pointed to the April 30 ruling by the California Supreme Court that some experts called a bombshell because it will require thousands of employers statewide to re-examine whether their workers are employees or contractors.
The case is Doe v. Uber Technologies Inc., CGC17561307, California Superior Court, San Francisco County.
— With assistance by Eric Newcomer