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Trial date set on feds’ claims Uber penalizes disabled riders with ‘wait time’ fees

A federal judge will decide at trial whether Uber discriminates against the disabled by charging a general fee to riders who keep drivers waiting longer than two minutes.

SAN FRANCISCO (CN) — Uber will face off with the Justice Department in a November trial over claims that the ride-hail giant violated federal disability rights law by imposing “wait time” fees on disabled riders who need more time to board vehicles.

At a hearing Wednesday, Uber urged U.S. District Judge William Alsup to toss the case, arguing that the wait time fee, which kicks in after a driver waits more than two minutes for a rider to get in the car, applies evenly to all riders regardless of disability.

Uber attorney Alan Schoenfeld conceded that while the company would be prohibited from charging a special fee or higher fee to disabled riders, the generally-applicable waiting fee is no different than charging a $1 stowage fee for a suitcase or wheelchair, which the Department of Transportation says is permissible.

But Alsup questioned whether the fee might disproportionately harm disabled riders who might take longer than the non-disabled to get into a waiting Uber.

"Let's say that the guy in the wheelchair is right there on the corner but the driver parks across the street, which happens all the time,” Alsup said. “It could be that the guy can't cross the crosswalk in two minutes to get to the other side to get in the car and yet you're going to hit them with a late fee. Don't you think that's unfair in that case? If somebody is in a wheelchair and can't get across the street because your driver decided to park across the street? To me, it’s not fair.”

Schoenfeld said the question is only whether the fee is permissible under the Americans with Disabilities Act and the Department of Transportation, which enforces the law, allows transportation providers to charge fees that apply generally.

"Here, this fee applies to everyone under all circumstances. There are lots of circumstances where this wait time fee applies that have nothing to do with a delay caused by a disability,” Schoenfeld said.

Attorney Matthew Faiella with the disability rights division of the Department of Justice said Uber was using the Transportation Department's guidance on stowage fees to sidestep the ADA.

"Here, Uber is trying to use a narrow exception to swallow the rule. The ‘full and equal enjoyment’ mandate of the ADA is what should control here,” Faiella said. He likened the wait-time fee to charging a disabled person for using a service animal and warned that upholding the waiting fee could lead to “retrograde results.”

Alsup denied Uber’s motion to dismiss from the bench.

“I feel like I need a lot more facts to be able to tell whether or not which side this falls on,” he said. “It’s true we have a regulation that says an entity should not impose special charges on individuals with disabilities, but we're not dealing with a special charge. And the fact that there is a regulation that says you cannot do something, that a special charge is illegal, does not automatically legalize everything else.”

Alsup said he needed more facts about how the fee is applied, though Uber “made a good point” in differentiating the prohibition on higher or special charges from its fee.

Such specifics include how often drivers park across the street from riders’ requested pick-up spots, the accuracy of their GPS devices, and whether disabled riders can request that drivers waive the penalty.

Alsup also wants to know how often disabled riders are charged waiting penalties compared to non-disabled riders.

“On its face, it's a neutral policy, but what is the actual burden on the disabled? Is it a rare case, or does it come up all the time? Is the burden dramatically more on the disabled? If it started at 10 minutes, I would say look, everybody can get into the car in 10 minutes, even somebody who is disabled. But at two minutes, it's a closer call.”

He told the government to “get into the records of the company and take depositions” and admonished the attorneys not to drag their feet in doing so as he wants the trial to happen this year.

"Get in there and do the hard work,” Alsup said. “You have to get going on this, and don’t delay. Don't do what the government does in every case where it insists on having every document in the universe before they take a deposition.”

The parties agreed to a Nov. 7 trial date.

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