A decision from the Northern District of California on Tuesday found that a former Uber driver’s attempt to hold his employer liable for racial discrimination fell short of satisfying the pleading requirements for a third time. The four-page opinion by Judge Vince Chhabria said, however, that it would not be impossible for the plaintiff to state a disparate impact claim and gave the litigant “one final chance.”
The plaintiff’s operative complaint contends that Uber discriminates against non-white drivers through use of its “star rating system,” which passengers use evaluate drivers on a one to five scale after each ride, with low-scoring drivers subject to termination.
“Uber’s use of this system to determine driver terminations constitutes race discrimination, as it is widely recognized that customer evaluations of workers are frequently racially biased. Indeed, Uber itself has recognized the racial bias of its own customers,” the complaint argues.
Previously, the court greenlighted two of the three elements required to state a disparate impact claim. The plaintiff “plausibly alleged that racial discrimination could affect customer ratings, including in the rideshare industry,” but failed to put forth allegations “that this legitimate concern about racial discrimination actually manifested itself in driver terminations at Uber.”
In response to the initial dismissal, the second amended complaint offered a survey, conducted by plaintiff’s counsel, asking drivers to both check a box indicating their race and asking, “If you have been deactivated by Uber, was it because your ratings were too low?”
According to the complainant, “the results of the survey demonstrated that minority drivers were terminated for their ratings at a higher rate than white drivers.” But as Judge Chhabria previously explained, the survey was “essentially meaningless” as its terminology confused drivers and was limited to deactivated drivers only.
Reportedly, the third amended complaint included one change, a footnote stating that plaintiff’s counsel sent a follow-up email to survey respondents who answered “no” to the initial survey. Of those drivers who responded to the follow-up, 51.7% stated that they had not been deactivated at all.
“This new information makes [the] complaint worse, not better,” the opinion said.
However, Judge Chhabria granted the plaintiff 28 days to file an amended pleading, venturing that “it is hardly fanciful to suspect that Uber’s practice of terminating drivers based on customer ratings negatively affects minority drivers.”