Is it intent that matters or the effect?

Will a rideshare company that hires only women and only picks up women pass muster with antidiscrimination laws?
Will a rideshare company that hires only women and only picks up women pass muster with antidiscrimination laws?

I read a very interesting article written by attorney Malcolm Seymour of Garvey Schubert Barer. It was about the new ride sharing Uber style service called SafeHer, which advertises that they are a company “Driven by women Exclusively for women.” The promote safety as their prime concern. The question is, will this well intended idea be able to survive on its good intentions or will if fall do antidiscrimination laws.

Title VII

Seymour, in his analysis, points out that on the surface the idea of a company that only hires women would seem to violate Title VII of the Civil Rights Act of 1964 despite of the good intentions of promoting equality for women as well as safety for women. He does point out that there is some allowance in the law for some same sex provisions. A bona fide occupational qualification (BFOQ) is what allows companies to hire only women to staff women’s locker rooms and dressing rooms. So perhaps SafeHer could argue that they cannot provide a safe environment by having to hire men.
Of course not having men as drivers is not an assurance of safety. Where I live there are frequent stories of women holding up stores, carjacking, getting into fights and shooting people. A woman inclined to be a criminal might see a car-ride service that only has female passengers as a land of golden opportunity.

State laws

Seymour also points out that many states and municipalities also have individual anti-discrimination ordinances, especially when it comes to public accommodation, like a ride-sharing service. Unlike Title VII, which is only applicable to companies with 15 or more employees, state and municipality laws often cover small companies and in some cases companies with just one employee. He does point out that these laws also have some BFOQ type of considerations.

Other considerations

In addition to the antidiscrimination issues that SafeHer will have to have to deal with the independent contractor issues that Uber and Lyft are having to deal with as well.
They will get sued. Imagine a situation where a couple is out and the woman arranges for the car, using her account with SafeHer without thinking. The car pulls up and the driver tells the man he is not allowed in. Or another case where a man applies to be a driver and he is denied employment due to his sex. That is certainly ripe for a legal challenge.
SafeHer has temporarily suspended their nationwide roll out. Seymour suggests they may want to start up in jurisdictions where the might find a “friendlier” audience and court system in order to get their feet on the ground and talk about how well it works, or discover that it does not. I am all for opening up opportunities for women and also for providing safe environments. However I think there are ways to accomplish those goals without being discriminatory in your hiring practices or in your service model.
To read Mr. Seymour’s excellent article you can click here.
Photo: Courtesy of Toa55

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