Circuit Courts Split on Standing to Sue in ADA Title III Website Accessibility Claims
On standing to sue under Title III of the Americans with Disabilities Act (ADA), two U.S. Circuit Courts have arrived at opposite conclusions where the plaintiffs did not allege any concrete injury and said they had no intention of visiting the hotels whose websites were the subject of their accessibility lawsuits. The courts based their decisions on the same U.S. Supreme Court case law and nearly identical facts.
After the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins, 578 U.S. 330, 340 (2016), courts have decided a number of cases on the issue of standing vis à vis “concrete harm,” which is harm that is “real, and not abstract.” Spokeo explained that a bare statutory violation not resulting in such concrete harm means there is no case or controversy over which a federal district court can assert subject-matter jurisdiction. This is plainly an issue in Title III cases against public accommodations: if a plaintiff can show a relatively simple technical violation of the myriad of accessibility guidelines, but the violation did not cause the particular plaintiff any concrete harm, the plaintiff should, the argument goes, lack standing under Spokeo to pursue a claim and the lawsuit should be dismissed. Recently, two Circuit Courts arrived at different conclusions in cases the lower courts dismissed for lack of standing for failure to allege a concrete injury.
In Laufer v. Arpan LLC, 2022 U.S. App. LEXIS 8270 (11th Cir. 022), the plaintiff sued a hotel under Title III for failure to provide required information on its website on the property’s accessible features, as is required by 28 C.F.R. 36.302 (Reservations Rule). The Reservations Rule’s purpose is to provide potential guests with disabilities sufficient information about a hotel’s accessibility features to permit them to assess whether the property is accessible for their specific limitations. The lower court dismissed the case, reasoning that the plaintiff suffered no concrete injury because she was a self-described “tester” who never intended to visit the hotel, and, therefore, the alleged lack of accessibility-related information did not cause her harm.
The Eleventh Circuit reversed, holding that, because the plaintiff alleged she suffered “frustration and humiliation” due to defendant’s alleged violation of Title III, she had Article III standing to sue. The Eleventh Circuit relied heavily on the Supreme Court’s decision in TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2204 (2021), as well as a recent case it decided before TransUnion, Sierra v. City of Hallandale Beach, 996 F.3d 1110, 1113 (11th Cir. 2021). In Sierra, the Eleventh Circuit held the plaintiff had adequately alleged a stigmatic injury because he claimed he was personally and directly subjected to discriminatory treatment when the defendant published videos on its website that he accessed but could not understand; therefore, the plaintiff had suffered concrete and particularized harm and had standing to sue.
The Supreme Court held in TransUnion that “under Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court …. Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.”
The Eleventh Circuit acknowledged that Sierra can be read in two ways and only one survives the Supreme Court’s TransUnion. It noted, “Sierra, broadly construed, would violate TransUnion’s command. To find concrete injury whenever an individual personally experiences discrimination in violation of a federal statute would be to equate statutory violations with concrete injuries. For better or worse, we can’t do that.”
Attempting to avoid overturning Sierra, the Eleventh Circuit held the emotional injury that results from illegal discrimination is sufficient to constitute a concrete injury. It held this is consistent with TransUnion because it reflects the Eleventh Circuit’s independent determination in Sierra that emotional injury caused by discrimination is a concrete harm that exists in the real world. Sierra, however, involved a claim under the Rehabilitation Act (which provides for compensatory damages) and that court based its holding that that plaintiff’s allegation of emotional harm satisfied the “concrete and particularized injury” requirement because “plaintiffs may recover damages for emotional distress for a violation of section 504 of the Rehabilitation Act.” No such claim was present in Laufer and emotional distress damages were not available.
The Laufer court held the plaintiff’s allegations satisfied Article III standing under the narrower reading of Sierra, because the plaintiff claimed not only that she suffered illegal discrimination but also that the discrimination resulted in “frustration and humiliation” and a “sense of isolation and segregation”; therefore, she adequately pleaded a concrete stigmatic injury. It appears that, in the Eleventh Circuit, plaintiffs may need only state that they felt frustrated by the alleged barriers they claim to have encountered to satisfy Article III standing, even if they have no intention of returning to the site of the barriers, will not face any direct barriers, and cannot recover for the alleged emotional injury.
In contrast, the Second Circuit, in Harty v. West Point Realty, Inc., 20-cv-2672, 2022 WL 815685 (2d Cir. Mar. 18, 2022), affirmed dismissing a claim brought under the same Reservation Rule involved in Laufer. The Second Circuit held the plaintiff did not sufficiently allege a concrete injury and, thus, lacked standing to bring the lawsuit. The Second Circuit (like the Eleventh Circuit) relied heavily on the Supreme Court’s TransUnion and determined the Supreme Court rejected the Second Circuit’s prior decisions on the standards to establish standing to sue (generally required a plaintiff to allege some risk of harm to the underlying concrete interest the federal statute sought to protect).
Similar to the plaintiff in Laufer, the plaintiff in Harty visited the hotel’s website with no intention of visiting the hotel; however, he alleged that he possibly may use the website to reserve a room at the hotel in the future. He alleged that he frequently visits hotel website to determine if they comply with the Reservations Rule. The Second Circuit determined that, because the plaintiff asserted no plans to visit the surrounding areas near the hotel, he cannot allege (despite the claimed lack of information on the hotel’s website) that his ability to travel was hampered in a way that caused him the concrete harm required to have standing to sue. Alleging a violation of the Reservations Rule alone is insufficient to confer standing to sue after TransUnion, the Second Circuit held. It also determined the district court did not abuse its discretion in not considering an affidavit the plaintiff submitted in an apparently obvious, belated attempt to bolster the allegations in his complaint concerning standing.
The Second Circuit has jurisdiction over Connecticut, New York, and Vermont, and the Eleventh Circuit has jurisdiction over Alabama, Florida, and Georgia. Absent Supreme Court or other guidance on website accessibility, claims will continue to challenge businesses.