Encrypting Discrimination: LGBTQ+ Workers in the Gig Economy

Introduction

While working as an Uber Eats delivery driver in Kansas in 2021, Laine, a transgender man, was required by company policy to display his legal name on his app profile, which he no longer used, effectively disclosing his transgender status. Customers were able to view his profile, which did not match his male gender identity, and he described experiencing harassment and ridicule when he completed deliveries to customers, which made him fear for his safety.

While nobody was physically, violently attacking me, these microaggressions they eat at you over and over and over again . . . . I shouldn’t have to tell my life story and I shouldn’t have to be forced back into the closet because of that. It wears on you, it’s draining, it’s tiring, it’s demeaning because it’s like you are not being taken seriously. Having to fight for your own identity, it absolutely takes a mental toll on you. And this was my breaking point.

His experience is just one of many that illustrate a lack of protections against discrimination and harassment for LGBTQ+ workers in the gig economy. In 2020, the COVID-19 pandemic sparked a sharp increase of unemployment and job insecurity in the United States. Unemployment rates for LGBTQ+ workers became more pronounced than the general population, especially in LGBTQ+ communities of color and transgender communities. LGBTQ+ people of color also took more cuts in hours than the general population, demonstrating an even more fragile job market for LGBTQ+ communities, who already struggle with larger rates of marginalization. In addition to the economic hardships caused by the pandemic, LGBTQ+ workers have also stated fear of discrimination and harassment as a reason to move towards freelance work. As the United Nations International Labour Organization phrased the issue, “Many LGBT [people] stay away from formal employment altogether, taking up freelance or informal work, fearing a discriminatory workforce.”

In response to these problems that LGBTQ+ workers have faced in the traditional job market, many LGBTQ+ workers have sought alternative sources of income in the gig economy. Although substantial demographic data on LGBTQ+ workers in the gig economy is difficult to gather, rideshare gig platform company Lyft reported that their drivers are twice as likely as the general working population to identify as LGBTQ+. Unfortunately, as more LGBTQ+ individuals turn to digital sharing platforms in order to avoid the problems associated with the traditional economy, they are met with ineffective protections from discrimination and harassment that would otherwise be available to them in a traditional workplace. Characteristics unique to the digital sharing economy and gig platforms create unanticipated problems for LGBTQ+ workers, who have few legal routes to pursue remedies.

Some state jurisdictions have attempted to resolve the gig worker discrimination and harassment through legislation. Digital sharing platforms rely on their internal company policies and self-regulation practices to prevent the harm of LGBTQ+ discrimination. However, due to the lack of legally enforceable and uniform protections for LGBTQ+ gig workers, these approaches are ineffective. To close this gap in the law, LGBTQ+ digital platform workers in the sharing economy should be classified under the definition of “employee” for the purposes of Title VII.

This article will discuss the issues surrounding the lack of antidiscrimination and harassment protections for LGBTQ+ workers in the digital sharing economy. Part I discusses real-world studies and examples of LGBTQ+ gig workers who have faced discrimination while working for app-based companies and the harmful consequences that result. Part II examines the legal background of LGBTQ+ employment protections in the United States as well as independent contractor status. Part III discusses the weaknesses of the anti-discrimination and anti-harassment policies that were introduced in California’s Proposition 22 compared to existing state and federal anti-discrimination employee protections. Part IV critiques the efficacy of social corporate responsibility and company self-regulation in anti-­discrimination enforcement. Part V answers the question of what should be done to correct the problems identified in Part I, offers support as to why employment status is preferable to other approaches, and analyzes possible theories of relief that LGBTQ+ gig workers could be entitled to under a more equitable system.

I. Lack of Protections for LGBTQ+ Gig Workers

A. Safety Concerns

Unlike in the traditional economy where companies often function as an intermediary between customers and workers, the nature of the digital sharing economy creates a distinguishing position of intimacy due to the close physical proximity and sharing of certain personal information between gig workers and customers. This is especially true for ride-share platforms, where drivers and customers exchange personal information on their profiles, such as their name and vehicle information, in order to identify each other and complete the transaction. While the practice of sharing personal data is necessary in the gig economy to help customers and service providers make better informed choices, it also creates safety concerns and the possibility of bias, especially for LGBTQ+ gig workers. Customers may “draw on heteronormative conventions, for instance, to banish the spectre of sexuality . . . where they are navigating homophobic reflexes or avoiding anxieties about sexual threats by choosing a worker with a particular gender.” These anxieties are perhaps warranted by Uber’s most recent U.S. Safety Report which published that 3,824 instances of sexual assault were reported in 2019–2020. Although the number of reported sexual assaults decreased by thirty-eight percent since the source’s previous data, the reduction could be partially explained by the sharp decline of total completed rides in 2020 due to the COVID-19 pandemic. The data showed that from those reported cases, the accused assault perpetrators were split roughly evenly between riders and drivers, meaning that the safety and protection of both drivers for ride-sharing platforms as well as app-users is a cause for concern.

LGBTQ+ gig workers are particularly at risk of this type of harassment and assault due to systemic inequalities they have faced in the United States, particularly for transgender women and LGBTQ+ people of color. A study by the Williams Institute at UCLA School of Law found that transgender people are over four times more likely than cisgender people to experience violent victimization, including rape, sexual assault, and aggravated or simple assault. About half of the violent incidents were not reported to the police, demonstrating an importance for underlying prevention and safety regulation. “Research has shown that experiences of victimization are related to low well-being, including suicide thoughts and attempts,” said study author Ilan H. Meyer, Distinguished Senior Scholar of Public Policy at the Williams Institute. “The results underscore the urgent need for effective policies and interventions that consider high rates of victimization experienced by transgender people.”

Because violent victimizations and sexual assaults are more prevalent among members of the transgender community, and the nature of the sharing economy commonly creates an intimate environment between customers and gig workers during the transaction, gig economy platforms should be accountable for providing heightened safeguards to actively prevent the threat of harassment and assault.

B. App-Based Platform User Bias

LGBTQ+ workers in the gig economy face further threats of job insecurity due, in part, to direct discrimination enacted by the users of app-based platforms. Despite campaigns to promote diversity and reduce discrimination and harassment throughout rideshare platform companies, studies show that discrimination is persistent on these platforms for both drivers and users. One study indicated that drivers were more than twice as likely to cancel rides requested by people with names traditionally perceived to be Black, as well as users who had a rainbow filter on their profile picture, signaling support for LGBTQ+ rights. Although ride cancellations occur before the driver and app-user physically interact, they can cause economic harm to LGBTQ+ rideshare drivers due to lost fares. A similar form of direct customer bias occurs after the transaction is complete and presents itself through digital sharing platforms use of customer-user ratings and reviews. One study of rideshare ratings found that when the consumer experience was of low quality, “women [drivers] are penalized to a far greater degree than men, particularly by male raters [and] this penalty accrues notably for highly ‘gendered’ tasks, such as the cleanliness of the vehicle, while men are penalized more uniformly for imperfect service.” Similar rating and review systems and the resulting customer bias are not limited to rideshare gig platforms; similar results were found in ratings of providers on the freelancing platforms TaskRabbit and Fiverr.

Through the ratings and review features on digital sharing apps, customer-users are essentially enabled to discriminatorily harm a gig worker’s reputation by leaving arbitrarily poor reviews based on anti-LGBTQ+ bias, regardless of the quality of service provided. Low quality customer reviews and damage to a gig worker’s reputation based on discriminatory bias can result in penalties from the digital platform company, such as account suspension or deactivation. Even though those reviews are instances of invidious discrimination where gig workers are not at fault for any actual violation, workers can still be subjected to a lengthy appeal process before they can continue earning wages, causing even further economic harm as illustrated in the following section.

C. Algorithmic Reputation Management Systems

Direct discrimination through invidious reviews alone can negatively impact gig workers, but it is the company’s reliance on these biases for management input purposes that can cause even greater harm. Many platforms in the gig economy rely on customer ratings to maintain the quality of service for their users. These quality control practices can be misappropriated by users of digital sharing platforms, either intentionally or unintentionally, to harm gig workers based on their gender identity or sexual orientation.

App-based rating and review data features discussed in the previous section are also referred to as Algorithmic Reputations Management Systems. Digital platforms allow for potential LGBTQ+ discrimination and bias through their reliance on these systems because they effectively allow a customer’s discriminatory biases to impact the actions that a digital sharing company might take against its workers.

Traditional workplaces have long used customer feedback to inform workplace management decisions. Customer feedback in traditional companies generally requires a certain amount of customer initiative to take a survey, write a note, call a number, or provide a rating on an external site like Yelp or Google. Unlike traditional workplaces, app-based companies can prompt customers to quickly and conveniently rate their experience with the service provider after every transaction on the same application that they used to initiate it. Gig companies tend to use these algorithmic feedback systems because the companies receive the benefit of lowering the cost of supervision. These systems are able to accomplish this goal by providing a large-scale quality control system that directly controls workers’ app-based behavior without the need to employ supervisors to ensure that workers comply with the platform’s standards.

Customer comfortability is another benefit that app-based companies receive from reliance on reputation systems. Generally, gig economy platforms include gig workers’ composite ratings and reviews from past transactions on their profile for prospective customers to view to allow them to screen service providers efficiently. Due to the nature of the gig economy, customers frequently initiate transactions online with strangers, so the app-based reputation system is often their only mechanism to confirm that they feel comfortable with the service provider prior to the transaction.

A consequence of gig companies heavily relying on algorithmic management systems for information about the quality of their workers is that platform operators will also use these customer ratings to make decisions about rewarding and penalizing workers. For example, if a rideshare driver fails to maintain a composite rating above a required cut-off point, their account may be deactivated so that the driver can no longer use the platform to match with riders, economically harming the gig worker.

An example of the consequences of relying on large-scale reputation management data from consumers was illustrated in 2020, when a transgender delivery driver for Uber Eats in North Carolina, Rebecca, explained that her Uber Eats account was deactivated because of transphobic customers. Rebecca relied on Uber Eats as her main source of income during the pandemic and enjoyed the flexibility of hours that the gig economy offered. She explained that, on two occasions, customers reported that “she was not who she claimed to be,” and she believed that those reports came in because she was transgender. To make matters worse, she further complained that the reports caused her account to be suspended, and the process to appeal to Uber Eats and lift the suspension was lengthy, confusing, and arbitrary. She stated, “They use an algorithm for everything. There’s no personalization. They claim inclusivity and they claim to protect you in cases like this, but I don’t believe they will. I believe it’s all about the bottom dollar.” There is no reason to believe that Rebecca’s experience is an isolated one. It illustrates the way that reputation systems on gig economy platforms have a unique potential for enabling invidious discrimination against workers by relying on costumer ratings.

D. Identity Verification Software

Unfortunately, algorithmic management reputation systems are not the only automated strategy used by digital sharing platforms that have harmed LGBTQ+ gig workers. Another example of discrimination for transgender workers in the gig economy has been the use of facial recognition technology features. In 2016, Uber introduced a security feature called Real-Time ID Check which “randomly” prompts rideshare drivers to pull over and take a picture of themselves to compare to the driver’s photo on file. The verification could also be triggered if a customer reports the driver for fraud, resulting in more opportunities for customer discrimination through invidious reporting. If the photo does not match their file, the driver’s account is temporarily suspended while Uber “looks into the situation,” similar to the suspension and appeal waiting period resulting from negative reviews in reputation management systems.

Unfortunately, Uber did not consider the effects that this feature would have on gender nonconforming drivers, who are more likely to be reported for fraudulent identity. Additionally, the facial recognition technology was not configured to recognize drivers who were going through gender transitions with resulting changes in physical appearance. For example, Lindsay, a transgender Uber driver from Michigan, was suspended from her account for photo inconsistencies. She stated that she was prompted to pull over and verify her identity roughly 100 times in the course of a year and a half. The lack of consideration given to transgender gig workers while implementing automated management systems harms those who rely on the platform and who cannot afford to spend time for lengthy review periods while they cannot earn wages.

II. Bostock and Misclassification

LGBTQ+ workers in the gig economy are uniquely at risk of workplace discrimination and harassment. Not only are federal LGBTQ+ employment protections a novel area of employment and labor law, but also workplace rights for gig workers as a class are uncertain. This leaves LGBTQ+ gig platform workers in a tricky legal intersection between emerging LGBTQ+ civil rights and the unresolved legal debate around the misclassification of gig work as a whole.

A. LGBTQ+ Employment Law

Federal labor and employment protections for LGBTQ+ people are still a recent development in the United States. It was not until June 2020 that the Supreme Court of the United States issued its landmark decision in Bostock v. Clayton County and held that the prohibition against sex discrimination in Title VII of the Civil Rights Act of 1964 (Title VII) includes employment discrimination against an individual on the basis of sexual orientation or transgender status. Prior to the Bostock decision, LGBTQ+ protections in the workplace varied from state to state, and it was legal in more than half of the states to terminate or refuse to hire employees for being gay, bisexual, or transgender.

Despite this victory for LGBTQ+ employment rights, the landmark decision was narrow and left open many unaddressed issues, such as equal access to restrooms and locker rooms. The holding also intentionally avoided questions surrounding the religious liberties of employers and emphasized the existing safeguards for religious exemptions under the First Amendment and Religious Freedom Restoration Act. In response, some state representatives, like Missouri Senator Josh Hawley, who said the ruling “represents the end of the conservative legal movement,” became more politically motivated to advance restrictive LGBTQ+ lawmaking. The amount of legislation introduced to restrict LGBTQ+ individuals’ rights, which had already been rising in previous years, reached a historical high in 2022, and then 2023, and to date, looks on track to do the same in 2024. Some of the approved state laws were aimed at banning transgender youth sports, censoring educational topics, and restricting ID and healthcare access, all while also bolstering religious exemptions as a right to discriminate against LGBTQ+ individuals. Due to the inconsistent protections in varying states, the House of Representatives introduced the Equality Act, which would extend LGBTQ+ anti-bias protections to housing, public accommodations like bathrooms, and public services. Representative Mary Gay Scanlon said that the Equality Act is needed to end “the patchwork of state laws” around LGBTQ+ rights and create “uniform nationwide protection.” Although the future of LGBTQ+ rights is unclear in many states, LGBTQ+ employees are still entitled to discrimination protections under Bostock. However, the same cannot be said of independent contractors.

B. Independent Contractor Status and Discrimination

Not only is there recent innovation of federal workplace protections for LGBTQ+ workers, and consequent sparse guiding precedent, but also LGBTQ+ workers in the gig economy face the extra hurdle of worker misclassification. According to EEOC guidelines, determining whether a person is an employee or independent contractor is a fact-specific inquiry and “depends on whether the employer controls the means and manner of the worker’s work performance.” Digital platforms steadily contend that an independent contractor classification is necessary to achieve the desired flexibility of gig work. Those who advocate for employment status of gig workers claim that digital sharing companies retain sufficient control over their workers to be legally held accountable for them. The issue of misclassification was exacerbated during the 2020 pandemic while gig workers were risking their health and safety by providing food, groceries, and transportation. Despite providing these necessary services, and being considered “essential workers” under state and federal pandemic guidelines, gig workers still did not receive the recognition or benefits of heightened employment status. To receive essential workplace protections and benefits, workers must be categorized as employees rather than independent contractors.

Misclassification obstructs the enforcement of workplace protections for gig workers because most of the workplace protective regulation within the existing framework in the United States, including Title VII of the Civil Rights Act of 1964 (prohibiting discrimination in employment with respect to race, color, religion, sex, and national origin), the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA), applies to a company only with respect to the company’s employees and not with respect to the company’s independent contractors. This lack of status creates legal gaps that leave LGBTQ+ gig workers vulnerable to employment discrimination and harassment that would otherwise be protected by their newly covered status under Title VII and Bostock. In 2021, the Equal Employment Opportunity Commission under the Biden administration announced that it would plan to tackle discrimination and harassment faced by workers who claim to be misclassified as independent contractors. Further, the Labor Department budget plan pledged to prioritize “ending the abusive practice of misclassifying employees as independent contractors, which deprives these workers of critical protections and benefits.”

Despite these assertions, the misclassification of gig work debate remains federally unresolved, and there have been different approaches by various jurisdictions. In September 2022, Uber settled a misclassification dispute for $100 million after a New Jersey Department of Labor and Workforce Development audit found their drivers were wrongly classified as independent contractors. The state found that by misclassifying drivers as independent contractors, Uber unfairly denied them “crucial safety-net benefits such as unemployment, temporary disability and family leave insurance, and failed to make required contributions toward unemployment, temporary disability and workforce development.”

In another jurisdiction, the California Supreme Court held that under the “ABC Test,” a class of delivery drivers were improperly classified as independent contractors for the purposes of California’s wage orders. Soon after, California Assembly Bill 5 (AB5) was signed into law and required all businesses to reclassify their independent contractors to employees unless they could prove the three factors of the ABC Test:

The ABC test presumptively considers all workers to be employees, and permits workers to be classified as independent contractors only if the hiring business demonstrates that the worker in question satisfies each of three conditions: (a) that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of the work and in fact; and (b) that the worker performs work that is outside the usual course of the hiring entity’s business; and (c) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as that involved in the work performed.

Due to the lack of judicial guidance of federal LGBTQ+ workplace protections, along with the inconsistency of gig worker misclassification, LGBTQ+ workers in the gig economy are particularly vulnerable to employment discrimination and workplace harassment.

III: California Ballot Proposition 22 Approach

In response to the passing of AB5 and the concern of the lack of rights and protections for gig economy workers, digital sharing companies in California campaigned for a state ballot initiative to essentially create a new category of employment for gig workers. The proposition passed in November 2020 was called the App-Based Drivers as Contractors and Labor Policies Initiative, or California Proposition 22 (Prop 22). The ballot initiative essentially exempted companies like Uber and Lyft from having to classify their gig workers as employees rather than as independent contractors. The campaign was the most expensive ballot measure in California history, backed by more than $200 million from Uber, Lyft, DoorDash, Instacart, and Uber-owned Postmates, demonstrating the importance to their business models as digital sharing platforms.

What follows is Ballotpedia’s description of Prop 22’s changes:

Since Proposition 22 considered app-based drivers to be independent contractors and not employees, state employment-related labor laws did not cover app-based drivers. Proposition 22 enacted labor and wage policies that are specific to app-based drivers and companies, including:

· payments for the difference between a worker’s net earnings, excluding tips, and a net earnings floor based on 120% of the minimum wage applied to a driver’s engaged time and 30 cents, adjusted for inflation after 2021, per engaged mile;

· limiting app-based drivers from working more than 12 hours during a 24-hour period, unless the driver has been logged off for an uninterrupted 6 hours;

· for drivers who average at least 25 hours per week of engaged time during a calendar quarter, require companies to provide healthcare subsidies equal to 82% the average California Covered (CC) premium for each month;

· for drivers who average between 15 and 25 hours per week of engaged time during a calendar quarter, require companies to provide healthcare subsidies equal to 41% the average CC premium for each month;

· require companies to provide or make available occupational accident insurance to cover at least $1 million in medical expenses and lost income resulting from injuries suffered while a driver was online (defined as when the driver is using the app and can receive service requests) but not engaged in personal activities;

· require the occupational accident insurance to provide disability payments of 66 percent of a driver’s average weekly earnings during the previous four weeks before the injuries suffered (while the driver was online but not engaged in personal activities) for upwards of 104 weeks (about 2 years);

^· require companies to provide or make available accidental death insurance for the benefit of a driver’s spouse, children, or other dependents when the driver dies while using the app.

In addition to these proposed wage and hour policies, Prop 22 also required gig companies to “develop anti-discrimination and sexual harassment policies; develop training programs for drivers related to driving, traffic, accident avoidance, and recognizing and reporting sexual assault and misconduct; have zero-tolerance policies for driving under the influence of drugs or alcohol; and require criminal background checks for drivers.” All of these provisions and changes to the status of gig workers essentially attempted to create a new category for gig workers. Uber CEO Dara Khosrowshahi defended the initiative’s policies by stating, “What Prop. 22 is about is starting to move into the best of two worlds: you’ve got flexibility, you’re your own boss, you’re your own CEO, but you do have protections.”

A. Sexual Harassment Provision

Prop 22 also included requirements for sexual harassment prevention. The provision required that app-based companies develop a policy that shall, at a minimum:

(1) Identify behaviors that may constitute sexual harassment, including the following: unwanted sexual advances; leering, gestures, or displaying sexually suggestive objects, pictures, cartoons, or posters; derogatory comments, epithets, slurs, or jokes; graphic comments, sexually degrading words, or suggestive or obscene messages or invitations; and physical touching or assault, as well as impeding or blocking movements.

(2) Indicate that the network company, and in many instances the law, prohibits app-based drivers and customers utilizing rideshare services or delivery services from committing prohibited harassment.

(3) Establish a process for app-based drivers, customers, and rideshare passengers to submit complaints that ensures confidentiality to the extent possible; an impartial and timely investigation; and remedial actions and resolutions based on the information collected during the investigation process.

(4) Provide an opportunity for app-based drivers and customers utilizing rideshare services or delivery services to submit complaints electronically so complaints can be resolved quickly.

(5) Indicate that when the network company receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation to reach reasonable conclusions based on the information collected.

(6) Make clear that neither app-based drivers nor customers utilizing rideshare services or delivery services shall be retaliated against as a result of making a good faith complaint or participating in an investigation against another app-based driver, customer, or rideshare passenger.

The sexual harassment prevention provision also required app-based drivers to submit an “electronic confirmation” that that they have reviewed the network company’s sexual harassment policy prior to providing rideshare or delivery services, but did not indicate a similar requirement for customers. Although the initiative listed minimum requirements for sexual harassment policies, the section did not define the “process” for filing complaints or “remedial actions and resolutions” for alleged harassers.

B. Antidiscrimination Provisions

The proposition also contained provisions to deal with discrimination in the gig economy. However, researchers with the Partnership for Working Families (PWF) and National Employment Law Project (NELP) explained that “the benefits contained in the initiative pale in comparison to what workers are entitled to under state law.” For instance, California’s Fair Employment and Housing Act explicitly makes it unlawful

[f]or an employer, because of the race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or veteran or military status of any person, to refuse to hire or employ the person or to refuse to select the person for a training program leading to employment, or to bar or to discharge the person from employment or from a training program leading to employment, or to discriminate against the person in compensation or in terms, conditions, or privileges of employment.

California’s Department of Fair Employment and Housing is responsible for enforcing the state employment discrimination law, and it provides various resources, such as guidance to file employment discrimination claims. In comparison, the anti-discrimination provision in Prop 22 provides only:

It is an unlawful practice, unless based upon a bona fide occupational qualification or public or app-based driver safety need, for a network company to refuse to contract with, terminate the contract of, or deactivate from the network company’s online-enabled application or platform, any app-based driver or prospective app-based driver based upon race, color, ancestry, national origin, religion, creed, age, physical or mental disability, sex, gender, sexual orientation, gender identity or expression, medical condition, genetic information, marital status, or military or veteran status.

Although Prop 22’s antidiscrimination provision covered many of the same protected categories as California law, the protections offered by Prop 22 amounted to a “pale, likely unenforceable imitation of the discrimination provisions in California law.” Other than stating that discrimination and sexual harassment claims shall be governed by the same Civil Rights Act of California, the provision did not provide any detail for filing worker discrimination claims or reporting procedures for sexual harassment. Further, the proposal did not provide explicit protection against third-party discrimination or retaliation protections other than for sexual harassment claims.

Prop 22, sponsored heavily by app-based companies, also made sure to include two ambiguous defenses that companies could use to justify discriminatory actions: a bona fide occupational qualification (BFOQ) exception and an exception based on public or app-based driver safety need. Under Title VII and California law, the bona fide occupational qualification defense is narrowly available to employers when a practice facially discriminates against a group of individuals because of their protected status, and it cannot be used to defend racial discrimination. Inversely, Prop 22 included the BFOQ exception facially into the initiative, thereby making it broadly available for app-based companies to create and defend discriminatory policies against any protected group.

Despite the Prop 22’s contentious and expensive procedural history, on August 20, 2021, Alameda County Superior Court Judge Frank Roesch ruled that two sections of Prop 22 were unconstitutional, which rendered the measure as a whole unenforceable. The decision reasoned that Prop 22 unconstitutionally limited the power of the legislature and that it violated the state’s single-subject rule, meaning that a ballot initiative cannot embrace more than one subject.

Regardless of the unconstitutionality of the Prop 22 initiative, due to the lack of comprehensive protections and enforceability measures demonstrated in federal and California state law, anti-discrimination and anti-harassment policies similar to the sections in Prop 22 would be ineffective to alleviate the harm faced by LGBTQ+ rideshare and delivery drivers.

IV. Corporate Social Responsibility Approach

Another approach to addressing LGBTQ+ discrimination in the gig economy has been driven by voluntary initiatives and public relations campaigns that fall under the scope of corporate social responsibility. As part of these marketing promotions, many app-based companies have implemented overt LGBTQ+ diversity programs. While these platforms boast their unwavering support for LGBTQ+ anti-­discrimination to the public, their policies lack strong enforcement. Digital sharing platforms benefit from the internal self-regulation of corporate social responsibility approach because it allows them to “virtue signal” by constructing a socially conscious brand image without an outside enforcement entity to hold them accountable for their policies. For example, on Uber’s Pride policy webpage, the company gains public goodwill by boasting about its high rating from the Human Rights Campaign with a top score of 100 in the Corporate Equality Index (CEI) from 2016 to 2019. However, the CEI score system was met with criticism from Pride at Work Executive Director Jerame Davis, who released a statement saying: “We are disappointed that the HRC Corporate Equality Index (CEI) rewards big corporations for questionable employment practices without taking into consideration the lived experiences of the LGBTQ working people in those corporations.”

A. Safety Features and Transparency

Similar to the antiharassment requirements set forth in Proposition 22, internal corporate harassment policies are ineffective. In response to growing safety concerns with rideshare apps, companies began demonstrating a commitment to transparency and activism, by publishing data reports, partnering with advocacy groups, and developing safety resources. For example, Uber gave drivers the option to film and record their rides, and additionally created a hotline for sexual assault survivors with the Rape, Abuse & Incest National Network. Although research is unclear as to the extent, these safety developments may have factored into the reduced rate of sexual assault reports in 2020. However, some former gig workers doubt the legitimacy of Uber’s safety campaigns, and, since 2021, multiple plaintiffs have brought sexual assault lawsuits against rideshare companies for their lack of protection. Moreover, the mere addition of new safety features to app platforms is not intrinsically beneficial to gig workers, as demonstrated by the identity verification safety features described in Section I that contributed to discrimination against rideshare drivers who were transitioning.

Along with the effectiveness of added safety features, gig companies’ commitment to transparency in reporting has been contested. In 2019, Uber settled a $9 million claim for the failure to provide more detailed information regarding sexual violence reports, at the request of the California Public Utilities Commission. Further, the district attorney’s office for Santa Clara County in California observed that the actual number of prosecuted sexual assault cases involving Uber was much less than the estimated number of cases would be based on Uber’s Safety Report, suggesting that many cases reported to Uber were not reported to authorities. In the name of preserving victim privacy, instead of notifying authorities, Uber claims that it sends the victims their hotline number and informs them of the option to report to law enforcement. Assistant District Attorney Terry Harman stated, “Uber receives a complaint, investigates the complaint, makes a finding and handles said finding internally and privately . . . Uber has essentially carved out its own justice system.”

Sexual assault reporting is not the only harassment that companies in the gig economy handle internally. For example, in response to a rise in drunken assaults on drivers by customers in Charlotte, North Carolina, Uber suggested that drivers leave the plastic toy, “Bop It” in their back seats to distract intoxicated customers from disturbing drivers. And in Seattle, Uber suggested installing passenger-facing mirrors so customers could “self-moderate their behavior.” With these experimental methods, digital platforms place the burden of preventing harassment upon the workers, rather than creating effective, preventative systems to ensure the safety of their workers, such as legally enforceable anti-harassment policies.

B. Internal Anti-discrimination Policies

Regardless of whether they are legally obligated, most of the largest gig platform companies have developed their own anti-discrimination policies driven by corporate social responsibility. However, one study showed that most of the existing policies are either extremely short or briefly mentioned as part of other company policies, and most app-based companies do not provide any information of how their non-­discrimination policy will be enforced. Even more troubling, in the same empirical study of 108 gig economy platforms, results showed that most other digital sharing companies do not even provide a separate non-discrimination policy.

The lack of efficacy of relying solely on gig economy social responsibility and self-regulating discrimination policies and harassment procedures is further demonstrated by the ongoing prevalence of the issues described in Part I of this article. While large gig economy platforms like Uber and Lyft receive great public relations for their LGBTQ+ and diversity campaigns, they simultaneously harm their LGBTQ+ workers by neglecting their duty to ensure a safe and nondiscriminatory work environment.

V. LGBTQ+ Gig Workers as Employees

The most effective approach to ensure that LGBTQ+ gig workers have access to workplace discrimination and harassment protections is to resolve their misclassification as independent contractors by categorizing digital sharing companies as employment entities. Existing federal civil rights legislation, along with decades of guiding precedents, has created a reliable framework to address LGBTQ+ gig worker’s safety concerns, as well as direct and indirect discrimination in the digital sharing economy. If gig workers were able to bring discrimination actions under Title VII, plaintiffs could rely on the theory of disparate treatment or disparate impact, and harassment.

A. Safety Concerns: Harassment Claims

Equipped with employee status, LGBTQ+ gig workers would have a variety of heightened preventative measures and remedial actions against sexual assault, harassment, and violence. As employment entities, digital sharing companies would no longer be able to circumvent their duty to provide a harassment-free work environment for their workers, giving companies incentives to create proactive safety policies. As employees, LGBTQ+ gig workers would be protected by OSHA regulations, have standing to bring harassment claims under Title VII, and would be protected from retaliation.

To state a prima facie claim for harassment, a plaintiff must show unwelcome and offensive conduct based on a protected status, resulting in a tangible employment action or creating a hostile work environment. A tangible employment action constitutes a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. A hostile work environment is created when unwelcome conduct is so “severe or pervasive” that it creates an abusive work environment. Additionally:

An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the Commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such non-employees.

Based on the existing Title VII harassment framework, companies in the gig economy would have a heightened duty to protect workers, and the Commission could serve as a more reliable enforcement than internal corporate policy. LGBTQ+ gig workers would also be able to make a strong prima facie harassment case. Recall Lindsay, for example, a transgender Uber driver in Michigan. In her experience, she claimed to have been prompted to pull over and verify her identity over 100 times in the span of a year and a half. If she could present sufficient evidence that Uber passengers were reporting her on the app because of her transgender status, she could make a case that the amount of verification prompts was pervasive enough to create a hostile work environment and that the company failed to take appropriate action. LGBTQ+ gig workers could bring a claim that persistent negative customer reports based on their protected status resulted in an adverse tangible employment action. Recall Rebecca, a transgender delivery driver who relied on Uber Eats as her main source of income and whose account was deactivated because customers reported that “she was not who she claimed to be.” A court could potentially view the economic harm suffered from the deactivation or suspension period as a tangible adverse employment action.

B. Direct Bias: Disparate Treatment Theory

Employee status for LGBTQ+ gig workers would provide more safeguards against intentional discrimination and customer bias in the digital sharing economy. If LGBTQ+ gig workers were classified as employees under federal law, they could bring employment discrimination claims under Title VII to address direct bias. One tool that an LGBTQ+ gig worker could utilize to bring a Title VII discrimination claim is the disparate treatment theory of discrimination.

Under this theory, a plaintiff must show that there was an adverse employment action motivated or caused by their protected LGBTQ+ status. A disparate treatment plaintiff must prove that the employee’s protected characteristic “was a motivating factor” in the employer’s treatment of the employee. The digital platform may “escape liability where it has acted to satisfy a customer preference to discriminate on the basis of a protected trait if the employer can demonstrate that the protected trait is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise.” Sometimes privacy interests may support a successful bona fide occupational qualification defense for an employer. Employer decisions connected with certain positions that deal with private matters, such as a masseuse, can escape discriminatory liability based on the comfort of clients. Although a privacy argument could support a BFOQ defense for gig companies due to the previously mentioned “intimacy” concept within the gig economy, success remains uncertain due to lack of case law about LGBTQ+ Title VII cases. Notwithstanding, even the ability to bring a claim would make LGBTQ+ gig workers more equipped than the current structure.

C. Systemic Discrimination: Disparate Impact Theory

Finally, LGBTQ+ gig workers could bring a claim using the disparate impact theory of employment discrimination. Under this theory, a gig worker would not need to prove that the platform operator intended to discriminate. The disparate impact theory applies to company practices and procedures that are neutral on their face, but disproportionately adversely affect a group with protected status under Title VII. “Statistical evidence of the disparity caused by a practice can be used to provide a reliable indicator of disparate impact on the protected group.” However, the Supreme Court noted that the usefulness of statistical evidence “depends on all the surrounding facts and circumstances.”

If the plaintiff successfully creates a prima facie disparate impact case, the burden shifts to the employer to show that the challenged practice is “job related for the position in question and consistent with business necessity.” If the employer sufficiently demonstrates that the challenged practice meets this standard, the plaintiff is given the opportunity to show that the employer refuses to adopt an alternative employment practice that serves the company’s interests equally well.

Because gig platforms’ use of algorithmic reputation systems and facial recognition software is a facially neutral practice, LGBTQ+ gig workers would need to rely on disparate impact theory to bring a Title VII claim. To make a valid disparate impact claim for the use of algorithmic reputation management systems, an LGBTQ+ plaintiff would need to show that the practice disproportionately affects LGBTQ+ gig workers. Based on the instances previously discussed, such as the failure of facial recognition software to account for rideshare drivers who are transitioning, and the material employment action of account deactivation, there is a strong likelihood of disproportionate adverse effect on transgender gig workers.

Plaintiffs could face a challenge if the digital platform company could show that the use of reputation management systems is “job related for the position in question and consistent with business necessity.” App-based companies would have a strong defense here because there are multiple job-related uses for the systems, and they are “arguably the best measure of the customer’s satisfaction with the provider.”

If the gig company succeeded in this defense, a plaintiff could still succeed if the employer refused to adopt an equally useful alternative practice. In this situation, there are multiple alternatives to the reliance on reputation management systems that are less discriminatory to LGBTQ+ workers. For instance, digital sharing platforms could limit the amount of personal information available to customers, filter out ratings and reviews that rely on homophobic or transphobic biases, or separate customer ratings and reviews from employment decision-making altogether, just to name a few.

Regardless of whether an LGBTQ+ gig worker would prevail on any of the theories contemplated in this section, there is a much stronger likelihood of mitigating the harms that LGBTQ+ gig workers currently face if they had the protections and Title VII coverage that accompany employment status under the existing framework.

Conclusion

This article advocates for the implementation of employee status for gig platform workers in order to mitigate the harms of LGBTQ+ discrimination. Granting employee status would hold platforms responsible for protecting their workers from customer bias, reputation systems bias, and harassment while working. It would also give workers standing to bring claims under state and federal employee discrimination laws, making it easier to assert their rights in the workplace.

As the modern economy continues to adapt, gig workers cannot solely rely on corporate social responsibility, self-regulation of app-based company policies, or an alternative intermediate category of workers in different states, like the one described in California’s Prop 22. Currently there are common instances of LGBTQ+ discrimination in the gig economy with very little regulation or protections for workers to mitigate the harm. If gig platform workers were classified as employees, they could assert their rights under state employee discrimination laws, as well as Title VII of the Civil Rights Act. Employee status would also keep app-based platforms responsible for the safety and best interests of their workers, while they previously sidestepped their obligations while benefitting from the work.