Seal of the Supreme Court of the United StatesThe Supreme Court has said that before a plaintiff can file suit in federal court he or she must have suffered a “concrete and particularized” injury. The requirement is constitutional and comes from the case and controversy clause in Article III. For statutory claims like those under the ADA this means an injury of the kind the statute was intended to prevent. The rise of ADA website lawsuits has caused some courts to take a look at just what injury the ADA was intended to prevent. Was the ADA intended to prevent those with disabilities from suffering some dignitary harm based on the mere knowledge that discriminatory conditions exist, or does it require real discrimination in access to goods and services?

The most prevalent view has been that the ADA does not require anything more than a kind of dignitary harm based on knowing a discriminatory condition exists. This is not how the courts put it, but the effect is clear in cases like Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939, 947 (9th Cir. 2011). In Chapmanthe court held that the plaintiff was not required to show he unable to access the goods and services of the defendant, or even that he had some difficulty in doing so. Instead he only had to show there were violations of the ADA construction 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.

The syllogism here is simple:

  • Discrimination is the absence of full and equal enjoyment.
  • Full and equal enjoyment for any disabled plaintiff exists only in the complete absence of any violation of the ADA construction standards related to his or her disability.
  • Thus, the presence of a violation is the same thing as discrimination.

The flaw in this syllogism lies in the second part, which equates any violation of the ADA construction standards with a denial of full and equal enjoyment. There are two problems. First, it is obviously false. Suppose a disabled individual finds an accessible parking place at her local mall. The parking place itself meets all the standards; it is sufficiently wide, sufficiently flat, has an appropriate adjacent access aisle that is also the right width and flatness which leads in turn to a perfectly built ramp that leads to a perfectly built sidewalk that leads in turn to a mall that has no ADA violations of any kind. There is one problem however, the accessible parking sign is five inches below the minimum height required by the ADA standards. According to Chapman this disabled person has, by definition, been denied full and equal enjoyment of the shopping mall even though her access was not hindered in even the slightest manner. Her “injury” is a legal fiction that bears no resemblance to reality.

The second problem with an injury based on a legal fiction is that it cannot be particularized. The sign height requirements in the ADA standards are intended to make sure accessible parking can be found by making sure the signs are visible.  A disabled person seeking an accessible spot when the parking lot is full and the sign is five inches too low to be seen really will suffer an injury – the inability to find an accessible parking spot. According to Chapman that injury is indistinguishable from the fictive injury suffered by the disabled shopper who arrives when the lot is empty and the sign is perfectly visible. When the real injury and the fictive injury are given identical treatment it is clear the injury is not particularized and has nothing to do with the individual except that person’s membership in a particular class of disabled individuals.

To find a less generic injury Chapman relies on earlier cases in which the plaintiff claimed an injury because knowledge of the alleged ADA violations deterred him from visiting or returning to the public accommodation. This supposedly makes the injury less generic: Whether a particular plaintiff is deterred will depend on the plaintiff. However, the feeling of being deterred is purely subjective, making the harm indistinguishable from a dignitary harm. The Ninth Circuit held in Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) that “a disabled individual who is currently deterred from patronizing a public accommodation due to a defendant’s failure to comply with the ADA has suffered “actual injury.” Note the words “failure to comply with the ADA.” There is no requirement that the plaintiff allege the supposed violation would in fact hinder his or her access; it is enough that the plaintiff feels like his access might be hindered. Pickernmakes the ADA a statute designed to protect the feelings of the disabled rather than to protect their access to public accommodations.*

In the last year a few courts have specifically rejected “dignitary harm” as an injury sufficient to give rise to standing, explaining that:

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.

Carroll v. New People’s Bank, Inc., 2018 WL 1659482 (W.D. Va. Apr. 5, 2018). None of the Ninth Circuit cases cited above use the words “dignitary harm,” but the result of their creation of a fictitious ADA injury is the same. Any disabled individual who becomes aware of an ADA violation automatically has standing to sue regardless of whether that barrier in fact hindered his or her access to the goods or services offered by a public accommodation. The plaintiff must allege deterrence, but because deterrence is purely subjective and need not be tied to any real impediment to access the allegation can never be proven false. By creating a fictional ADA injury with standing based on feelings rather than facts courts like the Ninth Circuit have made the Constitutional limits on standing meaningless. This has authorized the current serial litigation industry, an industry that generates wealth for lawyers but does very little good for the disabled.

Congress is politically incapable of dealing with this problem and will remain so for the indefinite future. The Department of Justice could use its regulatory authority, but it is clueless about the realities of ADA litigation. There is a solution though. The courts simply need to take the constitutional requirement of a concrete and particularized injury seriously, treating the ADA as a statute whose purpose is not to make the disabled feel good or line the pockets of lawyers but to make the world more accessible.

* The notion that a plaintiff is harmed by seeing an ADA violation is further undermined by the fact that for existing construction a “violation” requires that remediation be readily achievable, something a plaintiff cannot know merely by seeing something. There is no such thing as an obvious ADA violation and therefore no possibility of even dignitary harm by seeing something that looks like it might be a violation.