The spirit of entrepreneurship is alive and well in Massachusetts Bay. Whether the courts will let it flourish there or instead drive it elsewhere has yet to be determined.
First, the good news.
Later this month, Chariot for Women will begin operations in the Boston area. Founded by former Uber driver Michael Pelletz, Chariot markets itself as a ride-sharing service Driven by women. Exclusively for Women.
Pelletz got the idea after hearing multiple horror stories from female passengers who were hit on or assaulted by male Uber drivers. Also figuring into the calculus were multiple lawsuits that successfully showed the ride-sharing giant overstated its customer-safety policy in its marketing materials and added unnecessary fees for tolls and airport drop-offs.
Chariots female drivers, who will be paid $25 per hour, will pick up women and children under 13 years old. The drivers will be fingerprinted and undergo rigorous background checks. The Chariot app provides both passengers and drivers with a code word that must be confirmed before the ride can start.
Chariot sounds well designed to meet a market needover 1,000 women have reportedly signed up as driversbut there is one problem: Overly broad government laws and regulations.
This first hurdle is state employment law.
Massachusetts currently prohibits discrimination in employment on the basis of gender unless the employer can justify such practices with what the legal profession calls a bona fide occupational qualification. If a disgruntled male jobseeker challenges Chariots gender requirements in court, the burden will be on Chariot to show that a single-sex hiring policy is supported by a BFOQ.
The courts have narrowly applied the BFOQ exception. Examples in which it has passed legal scrutiny include an all-female prison, where male correctional officers had sexually abused female inmates, and a mental health facility that required staffers to observe female patients in particularly intimate settings.
Although Chariots rationale for not hiring male driverspeace of mind for female passengersseems inherently reasonable, reasonableness is not the standard imposed by the law. Chariot faces an uphill legal fight. If the company survives the onslaught of the employment lawyers, it will face discrimination claims from male passengers.
Massachusetts law forbids discrimination on account of gender in places of public accommodationwhich under the statute clearly includes ride-sharing services. Such laws are successors to the common laws requirement that common carriers such as railroad companies, which usually enjoyed a monopoly in transportation, serve all travelers. But while that legal doctrine made sense back when travelers had nowhere else to turn for safety or passage, today its a relic out of step with the times. A traveler in Boston can hail a taxi, use Uber, Lyft, or similar services, or use public transportation. Chariot has no monopoly like the railroads of yesteryear.
Chariot CEO Pelletz understands his start-up will face legal challenges: We hope to go to the U.S. Supreme Court to say that if theres safety involved, theres nothing wrong with providing a service for women. However, the Supreme Court chooses what cases it will decide and each year grants only a small percentage of requests for a hearing.
Pelletzs troubles fit into a larger story worth noting. The legal uncertainties surrounding Chariot are emblematic of why our economy stagnates. Entrepreneurs with promising business plans cannot make reasonable decisions on hiring and service without risking myriad lawsuits and incurring large legal bills. Overly broad laws that prohibit reasonable hiring practices and treat every business like a monopoly holder make no sense in twenty-first century America.
Social progress, no less than commercial innovation, requires that we cast off the assumption of legal coercion and embrace the principle of a voluntary society. Legal coercion should never replace freedom absent an overwhelming demonstration of necessity. And in the case of Chariot for Women, there is no necessity for government laws to put the break on an innovative company that could help take us to a future richer in choice and opportunity.
|William J. Watkins, Jr. is a Research Fellow at the Independent Institute and author of the Independent Institute books, Crossroads for Liberty, Reclaiming the American Revolution, and Patent Trolls. He received his J.D. cum laude from the University of South Carolina School of Law and is a former law clerk to Judge William B. Traxler, Jr. of the U. S. Court of Appeals for the Fourth Circuit.|
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