Reliable Transportation
February 24, 2013 5:58 PM   Subscribe

What are the arguments for and against method of transportation as a protected class?

I'm a bicyclist. I see job ads saying "you must have reliable transportation," and I see that as a reasonable requirement. And then further along in the ad, I see that they exclusively mean automobile, and that often seems unreasonable to me.

I know I live in a society whose paradigm is car culture and that method of transportation as a protected class isn't on the radar, but from a theoretical perspective, is it something that could qualify?
posted by aniola to Law & Government (24 answers total) 2 users marked this as a favorite
My argument against is that as far as I know there's not a currently protected class which is based on a lifestyle choice. And doing so would be a pretty damn slippery slope.
posted by bitdamaged at 6:05 PM on February 24, 2013

There are relatively few protected classes, and they tend to be things you can't do anything about (e.g. sex, skin color) or things that are specifically constitutionally protected (e.g. religion). Preferring bikes over cars doesn't fit into either of those categories.
posted by alms at 6:06 PM on February 24, 2013 [1 favorite]

Probably not. It's a conscious choice that's not protected by the Constitution (as is religion) or seen as necessary to the state (as are military service and marriage). One could potentially raise an ADA argument if you had some sort of condition that prevented you from driving, but if it's reasonable for employers to demand that you not resort to public transportation, I don't see that working (nor can I think of one that might also allow bicycling).
posted by Etrigan at 6:07 PM on February 24, 2013

There are quite a few professions in which the practitioners are expected to own and maintain some or all of their own tools. I believe many mechanics own their own tools.

Seems like the automobile is such a tool.
posted by straw at 6:11 PM on February 24, 2013

As the commenters above have noted, bicyclists are no more a protected class, and no more likely to become one, than people who wear comfortable shoes or yodelers or ice chewers. I also note that there is no commonly accepted Constitutional right to transportation in general.
posted by Admiral Haddock at 6:11 PM on February 24, 2013

A protected class is some quality that no one can change (e.g. race, age) or no one should ask you to change (e.g. religion, marital status).

Is it unreasonable that an employer asks you to be a car-owner? Do you think its on the same scale as firing you for getting pregnant or finding out you're a different religion?
posted by fontophilic at 6:12 PM on February 24, 2013 [1 favorite]

As a practical matter, you can just apply for the job and see if you really could get away with riding your bike in. Like, "Sure, I have a car. I just like to ride my bike."

As a legal matter, you can refuse to hire smokers, you can choose to hire married people over single people, you can refuse to hire ugly people, you can fire people for being too pretty... making something a protected class is pretty extreme.
posted by mskyle at 6:13 PM on February 24, 2013 [1 favorite]

The Court has ruled that income level is not a protected class, and so I don't see this happening. The choice to not own a car is either based on not having enough money (i.e. income level, which is not protected), or it's a personal preference about the environment/staying active/not supporting the oil industry, etc., which is even less likely to be protected. Not really sure what the grounds of that would be, anyway.

Also - I'm not sure exactly which postings you're looking at, but often when I see this, the job requirements really do require reliable transportation that takes place at the speed of a car and/or the ability to get multiple people around, which a bike cannot do. For example: getting around to clients houses, which may not be on transit lines, and are too far apart to make a bike work in a timely manner; working with kids where you might need to take them to activities or get them to the hospital quickly; shuttling from one work site to another in a certain amount of time. Can you give an example of job postings requiring a car, where either the speed of transit or the ability to carry along extra people is NOT a necessary component of doing the job?
posted by rainbowbrite at 6:13 PM on February 24, 2013 [3 favorites]

I remember this being discussed in a Seattle Transit Blog post, "The Little Things That Keep Us Driving."
posted by grouse at 6:14 PM on February 24, 2013

Protected classes in a Constitutional sense are usually groups that have been unfairly marginalized. A group's political power is also important. Most classes either have immutable characteristics or are defined by choices that are of constitutional significance. People who choose to ride bikes just don't fit into this paradigm. The legislatures can also create protected classes by statute (think of age discrimination laws), but that would require a public perception that this is a big problem.

In addition to the above, there is the simple fact that the courts are likely to see most of this discrimination as legitimate. Many jobs really do require visiting clients and others over distances and in time frames that require a car.
posted by Area Man at 6:16 PM on February 24, 2013 [1 favorite]

Response by poster: Rainbowbrite: for carrying things, such as children, there are all sorts of cargo bikes and trailers.
posted by aniola at 6:24 PM on February 24, 2013

When a prospective employer says something like "must have reliable transportation", they usually mean one of two things: either they want to be sure an applicant can and will show up to work on time every day; or they're hiring a deliveryperson who will need to provide their own vehicle.

If it's the first case, an employee getting to work on time, then the employer is unlikely to CARE if your "reliable transportation" is via public transportation, a car, a bicycle or roller skates. If it's the second, a car is preferred over a bike simply because a car can transport larger quantities of [merchandise] than the bicycle can. Neither situation has anything to do with being prejudiced for or against bicycles or bicyclists.
posted by easily confused at 6:29 PM on February 24, 2013 [2 favorites]

I think in some areas "must have reliable transportation" in job ads is really a way to be discriminatory against other classes. I don't want to say which city, but I lived in an American rust belt place where most ads for office jobs, where none of the job duties included driving, included language like, "must have own car" or "must have reliable transportation (no bus)." Let me reiterate: these were for non-driving office or service jobs along bus routes. What this city did have was a lot of poor black people in the inner city and I frequently witnessed overt racism from whites toward blacks. I believe that the "must have reliable transportation" was a filtering mechanism against poorer (and thus likely black) people in the area who were trying to get better jobs.
posted by stowaway at 6:30 PM on February 24, 2013 [16 favorites]

aniola: Yes, it is possible to get kids around on bikes. But, it is not unreasonable for a parent to want the nanny/babysitter to have a car. For example, what if kid needs to get from school at 3:30 to soccer practice in 15 minutes and the only way to get there in that time frame is at car speeds? Also, it is fine to make the choice FOR YOURSELF that you don't need a car and you want to have kids, but not unreasonable for a parent to want one available in an emergency situation so they are not on the hook for an ambulance cost when it might not be needed.
posted by rainbowbrite at 6:32 PM on February 24, 2013

Response by poster: The link grouse gave provided several examples of what I'm asking about. Where the employer does seem to care how you get to work.
posted by aniola at 6:33 PM on February 24, 2013

Response by poster: (Er sorry, that was from a subquestion. Small phone.)
posted by aniola at 6:36 PM on February 24, 2013

stowaway, I've seen that "reliable transportation"-as-filtering-mechanism thing too, and I'm curious if there are any legal implications for it.

But if it's not just about getting to the job, if you're using the bike/car in any kind of job-related activity, it might also be about signaling - maybe they don't *want* their company to be represented by a person on a bike, they want it to be represented by a person in a car. You or I might disagree with their decision, but it's their decision. Someone else can start a babysitting/real estate/trash pickup business where everything is done on bikes, and that's OK too.
posted by mskyle at 6:49 PM on February 24, 2013 [1 favorite]

There are quite a few professions in which the practitioners are expected to own and maintain some or all of their own tools.

This isn't common, but it also applies to phones, computers and like items. They do not have to reimburse you for these items, but I do believe if you itemize your taxes, you can write off a portion of the cost of the item based on how much you use it for work.

Sometimes it seems unreasonable, but legally, the business is well within their right to require a car. However, you can always apply to the job and see what happens. I've applied for jobs that have asked for a car (in the same city you're in, and i'm also commute by bike) and it never came up in the interview, or even after I was hired. Sometimes, as mentioned previously, this is used to weed out certain populations.
posted by furnace.heart at 6:52 PM on February 24, 2013

I imagine these requirements get added because one troublemaker employee is constantly late and blames the bus or a junky car breakdown. They add the requirement to the job description in order to keep that from happening again.

That said the effect is hugely discriminatory against minorities and people from poor backgrounds.
posted by miyabo at 7:05 PM on February 24, 2013

I also note that there is no commonly accepted Constitutional right to transportation in general.

Now, I'm going to object fairly strenuously to this.

It's fairly a fairly complex subject--and I'll agree with you completely that this doesn't help the OP at all in his quest to force employers to accept his chosen form of transportation--but the article "Freedom of Movement Under United States Law" has it pretty well nailed down:
  • "As early as the Articles of Confederation the Congress recognized freedom of movement (Article 4), though the right was thought to be so fundamental during the drafting of the Constitution as not needing explicit enumeration . . . "
  • "The Supreme Court has acknowledged that freedom of movement is closely related to freedom of association and to freedom of expression."
  • "Justice John Paul Stevens, writing for the majority, held that the United States Constitution protected three separate aspects of the right to travel among the states . . . "
Now, as the article suggests, the U.S. Supreme Court generally only protects the right to travel among states, but it expects state supreme courts to protect the right to travel within a state, and the state courts have been pretty vigorous in doing so. Also, in general the right to travel by any particular method is not protected, but the right to travel by *some* usual and customary method is protected, and travel by human power, as a basic human freedom, is generally far more clearly protected than the right to travel by any particular type of mechanical conveyance, such as by automobile.

The right to move about as you will under your own power, using the public roads and rights-of-way, is about as fundamental a human right as there is.

Good discussion here.

A few related quotes:
  • "The right of the Citizen to travel upon the public highways …. includes the right, in so doing, to use the ordinary and usual conveyances of the day, and under the existing modes of travel…." (Thompson vs. Smith, supra.; Teche Lines vs. Danforth, Mississippi.)
  • "The state of Missouri, by making the licensing requirements in question, is not prohibiting Davis from expressing or practicing his religious beliefs or from traveling throughout this land. If he wishes, he may walk, ride a bicycle or horse…. He cannot, however, operate a motor vehicle on the public highways without … a valid operator's license." (State v. Davis (Missouri 1988))
  • "Public streets are highways, and every citizen has a right to use them." "Each citizen has the absolute right to choose for himself the mode of conveyance he desires, whether it be by wagon or carriage, by horse, motor or electric car, or by bicycle, or astride of a horse, subject to the sole condition that he will observe all those requirements that are known as the 'law of the road.' This right of the people to the use of the public streets of a city is so well established and so universally recognized in this country that it has become a part of the alphabet of fundamental rights of the citizen." "There can be no question, then, but what a citizen riding on a bicycle in that part of the street devoted to the passage of vehicles is but exercising his legal right to its use, and a city ordinance that attempted to forbid such use of that part of a public street would be held void, as against common right." "It may be said of bicycles with greater force, as was said of the first use by railroads of public streets, that they are not an obstruction to, or an unreasonable use of, the public streets of a city, but rather a new and improved method of using the same, and germane to their principal object as a passageway." (Swift v. City of Topeka, 43 Kan 671, 23 P 1075, 8 LRA 772 (Kan 1890))

posted by flug at 7:49 PM on February 24, 2013 [6 favorites]

I just wanted to note that "protected class" is generally a question about the scope of the constitutional right against discrimination, but that the Constitution doesn't much regulate the duties of private employers. (The Fourteenth Amendment uses the word "state.")
posted by willbaude at 11:56 PM on February 24, 2013

I've seen a lot that say "must have valid driver's license" rather than commenting on the transport itself. My conclusion was that it was one way to filter out people who had certain medical conditions and those with recent substance abuse issues (DUI/DWI).
posted by whatzit at 3:26 AM on February 25, 2013

In my experience, potential employers have always accepted "I can walk / bike here in N minutes" as an answer to questions about transportation, even if the wording implied a car was expected. Even though I haven't personally run into it, if an employer insists on employees having a car even when it's not a rational requirement, it could be serving as proxy for class discrimination. Unfortunately class isn't a protected class. It would also unfairly eliminate people who can't drive because of a medical condition.

(I think economic class should be a protected class, and it's hard to argue that this is choice in most cases. But that's my opinion, not policy.)
posted by nangar at 5:42 AM on February 25, 2013

Once upon a time, the ex-Mr. PJMoore wrecked his car through no fault of his own. The other party's insurance did not want to give the ex anything for his car which was 25 years old. However it ran, and ran quite well, so to us was reliable transportation. We couldn't purchase reliable transportation for the tiny amount of money they offered. Reliable transportation, not the age of the car, was more valuable.
posted by PJMoore at 9:55 AM on February 25, 2013

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