It seems that CUNA, the Credit Union National Association has been slaying the dragon of serial website accessibility litigation.* In fact, the filing of a CUNA brief recently caused the plaintiff to just give up, dismissing the case voluntarily rather than face another unfavorable decision.** Looking at why CUNA has succeeded when the history of website litigation is mostly a story of defense failures points to an important rejection of standing based on dignitary harm, a rejection that may give defendants in non-credit union cases a useful argument of their own.
At the heart of CUNA’s victories have been holdings that the plaintiff lacked standing because the credit union in question had a restricted membership and the plaintiff could not qualify to join the credit union. Thus, she could not be injured by any lack of website accessibility. As CUNA writes in a recent brief:
[Plaintiff] has not suffered concrete and particularized harm because she has not alleged that she meets the eligibility requirements for membership in IBEW as set forth in its charter, nor would any remedial action regarding the website cure her lack of eligibility to become a member.
(Document No. 14-2 in Thurston v. Local 20 IBEW Federal Credit Union, 3:18-cv-00133-S, Northern District of Texas).
“Concrete and particularized harm” is the basic requirement for any plaintiff in a federal lawsuit because without that harm there is no “case or controversy” and Article III of the Constitution permits federal courts to hear only cases or controversies. No harm, no right to sue. It’s that simple.
What makes the credit union victories important is that many courts have said that ADA harm arises from merely confronting inaccessibility, even if there is no economic or social consequence. This approach is best summed up in the 9th Circuit’s bizarre tautological argument concerning building standards:
Because the ADAAG establishes the technical standards required for “full and equal enjoyment,” if a barrier violating these standards relates to a plaintiff’s disability, it will impair the plaintiff’s full and equal access, which constitutes “discrimination” under the ADA. That discrimination satisfies the “injury-in-fact” element of Lujan
Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947 (9th Cir. 2011). In other words, a violation of the technical standards injures any person with the appropriate disability even if it has no real effect on that individual’s ability to access the relevant goods and services. This is in keeping with the 9th Circuit’s recognition of “dignitary harm” as a ground for standing FHA disability access cases. Smith v. Pacific Properties and Development Corp., 358 F.3d 1097 (9th Cir. 2004). The concept of dignitary harm assumes that a statute like the ADA or FHA is intended not just to provide access to the disabled, but also to spare them the psychological trauma of even confronting a barrier to accessibility.
Website accessibility cases differ from the physical access at issue in Chapman because there is no website accessibility standard that can be said to create an injury by definition. Plaintiffs avoid this by alleging certain specific “defects” that can be identified with easy to use software tools. They then allege that because of these defects they were inhibited from “researching” or investigating the goods and services offered. They do not usually allege an actual intent to take advantage of the goods and services; only that they could not complete their research.
In this respect there no meaningful difference between the allegations concerning standing that have succeeded in non-credit union cases and those that failed in credit union cases. Non-credit union decisions have not required an allegation that the plaintiff actually intended to take advantage of the goods and services offered; only that the plaintiff was unable to research those goods and services or could not access specific features of the website. The same allegations are made in the credit union website cases. [Compare, Gathers v. 1-800-Flowers.com, Inc., 17-CV-10273-IT, 2018 WL 839381 (D. Mass. Feb. 12, 2018) with the complaint in Thurston v. Local 20 IBEW Federal Credit Union, supra]. The claimed harm is not in losing the right to buy, but in losing the right to shop.†
But does the ADA protect the right to shop in such a way that denial of that right creates a concrete and particularized injury? The plaintiff in a credit union case would claim that any person with ordinary vision can use a credit union website without being able to join the credit union and so a blind person should be able to as well. The harm the blind plaintiff suffers is the harm of not being treated the same as a person with vision, even though neither of them can get any real benefit from access to the website. That harm – unequal treatment with no real consequence – is dignitary harm. It makes the “victim” feel bad, but nothing more. This dignitary harm is also the harm that plaintiffs in non-credit union website cases suffer. Because they are only at the website to look for accessibility issues there is no meaningful consequence of the denial of access beyond their possibly injured feelings.
This kind of dignitary harm is precisely what district courts are rejecting in the credit union cases. Here’s how the court put it just last week in Carroll v. New People’s Bank, Inc., 2018 WL 1659482 (W.D. Va., April 5, 2018):
Moreover, if dignitary harm under such circumstances was sufficient to confer standing, “then any disabled person who learned of any barrier to access [of a public accommodation] would automatically have standing to challenge the barrier, thereby essentially eliminating the injury-in-fact requirement.”
Id., quoting Griffin v. Dep’t of Labor Fed. Credit Union, No. 1:17-cv-1419, (E.D. Va. Feb. 21, 2018), ECF No. 19, appeal docketed, No. 18-1312 (4th Cir. Mar. 20, 2018). The District Court in New People’s Bank noted that this kind of injury without an injury was just what the plaintiff wanted because it was necessary to power the litigation machine created by his attorneys:
Indeed, this is precisely what Carroll argues that the law should permit him to do – sue each and every website of a public accommodation that has a barrier to accessibility.
Id. What the court does not note is that in ordinary website accessibility cases this is exactly what the courts have permitted; that is, cruising the internet looking for lawsuits. Drive-by or serial litigants have been doing this for years, suing because they saw an ADA violation even though it caused them no injury at all.
This is where the credit union cases offer an opportunity for all ADA defendants. They cannot be reconciled with other cases brought by serial ADA filers. They demand that in any website accessibility case; or indeed, any ADA case of any kind, the court ask precisely what injury is being claimed and whether that injury is one the ADA is intended to prevent. The ADA was intended to prevent exclusion from the social and economic life of the nation. A serial plaintiff whose days are spent looking for websites that lack alt-tags is not suffering from that kind of harm the ADA. All courts should follow the lead of the courts that have dismissed credit union website cases and hold that to establish standing a plaintiff must allege and then prove discrimination with a real consequences, not merely a theoretical difference in treatment or a lack of access with no concrete harm beyond perhaps some bad feelings.
* See our blog, “Websites, the ADA and standing – yes, it matters.”
† Or, to put it in more official sounding terms, does it protect a right of access to the place where goods and services are provided that is independent of the right to actually use those goods and services.