Magritte painting of invisible man with question mark.Three cases in the last thirty days look at ADA standing and reach different conclusions about what the Constitution and the ADA require. For victims of serial litigation and for courts interested in the coherent application of the text of the ADA and similar statutes these are crucial cases.²

Standing on air in the Seventh Circuit.

In Laufer v. T & C Inn, LLC, 2021 WL 1759263, at *4 (C.D. Ill. May 4, 2021) the District Court adopted a view of standing that is very similar to that in the Ninth and other circuits. Under this standing theory a disabled plaintiff who sees an illegal barrier to access has suffered a harm sufficient to give rise to standing. Ms. Laufer is a purported tester who sues hotel websites that do not have the information about accessible facilities required by the DOJ’s ADA Title III regulations. Laufer does not claim she ever intends to visit the hotel or reserve a room; only that she was unable to find information. For this Court that was enough. The Court writes:

Plaintiff alleges that she visited the reservation websites and discovered that the websites do not contain accessibility information required by the ADA. The inability to obtain information that is statutorily mandated to be provided is an injury-in-fact sufficient to establish standing.

It is worthwhile looking at the “statutory mandate” the Court relies on. The ADA defines discrimination to include:

a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities. . . .

(42 U.S.C. §12182(b)(2)(A)(ii)). The italics are mine. DOJ has elaborated on this provision in 28 CFR §36.302. This regulation begins by simply repeating the statutory provision. What follows is a series of modifications that, by regulation, DOJ has determined to be reasonable. Item (e) in this list concerns hotel reservations, and includes the requirement that hotels provide information about accessible rooms and other facilities.

It is clear from the words in italics that the purpose of requiring accessibility information on hotel websites is to make it possible for those with disabilities to take advantage of the goods, services, facilities, privileges, advantages of accommodations of the hotel. It is not an abstract requirement that those with disabilities be given information, but one directed specifically at the ADA’s purpose of making goods and services available to those with disabilities.

The district court’s error is separating the statutory mandate to provide information from its purpose when it defines the “statutory mandate.” The statutory mandate is not “thou shalt provide information about accessibility.” It is “thou shalt provide information about accessibility that is necessary for disabled individuals can take advantage of the goods, services facilities etc.” The harm is not lacking information; the harm is lacking information when the person going to the hotel website needs that information to decide whether or not to book a room.

This mistake is not unique. Hundreds if not thousands of Circuit and district court decisions make exactly the same error, often invoking, as we will see, the notion of “dignitary harm” or “stigmatic harm” to suggest that the purpose of the ADA is not to provide access to goods and services, but rather to prevent disabled individuals from ever confronting the existence of conditions that might hurt someone else.

Standing on concrete in the Fifth Circuit.

This brings us to a pair of Fifth Circuit decisions involving the same plaintiff and essentially identical claims. In Laufer v. Mann Hosp., L.L.C.,  ––– F.3d ––––, 2021 WL 1657460, Slip op. (5th Cir. Apr. 28, 2021) and Laufer v. Galtesvar OM, L.L.C., 2021 WL 1726110 (5th Cir. Apr. 30, 2021) the Fifth Circuit held that because Laufer neither tried to book a room nor intended to do so she had not suffered any concrete injury from the website’s lack of information about accessible rooms. The fact that she was not able to obtain the “statutorily mandated” information was not enough. The Court’s explanation is worth quoting in full:

To be sure, Laufer has a right to “the full and equal enjoyment of the … services, facilities … or accommodations of any place of public accommodation” irrespective of disability. 42 U.S.C. § 12182. But she has failed adequately to allege that her “concrete interest” in the ADA-compliance of Sunset Inn’s ORS was “at risk from the purported statutory deprivation.” Lee, 837 F.3d at 530.

Laufer’s framing of her harm as an “informational injury” does not cure her lack of standing. Even assuming arguendo that a failure to advertise accessibility information could support an ADA claim,3 Laufer still “would need to allege at least that the information had ‘some relevance’ to her.” Brintley v. Aeroquip Credit Union, 936 F.3d 489, 493 (6th Cir. 2019) (citation omitted); see also Griffin v. Dep’t of Lab. Fed. Credit Union, 912 F.3d 649, 654 (4th Cir. 2019) (“Inability to obtain information is sufficiently concrete to constitute injury in fact only when the information has some relevance to the litigant.”). Without sufficiently concrete plans to book a stay at the motel, Laufer has failed to do so.

The Court concluded its argument by referring back to the Supreme Court’s original decision on tester standing, Havens Realty Corp. v. Coleman. The Supreme Court found in Havens that a black tester who had no intention of renting an apartment had standing to sue when he was given false information about the availability of an apartment. Havens rested on a specific distinction in the Fair Housing Act between those intending to rent and those merely seeking information about rentals. Subpart (a) of 42 U.S.C. §3604 prohibits refusing to rent or sell after making a bona fide offer. A claim under subpart (a) requires the intent to rent. The plaintiff in Havens sued under subpart (d), which in contrast to subpart (a), makes it illegal to provide “any person” with false information based on race. Because of this contrast between “any person” and “bona fide offer” the Supreme Court found that subpart (d) applied to those who were merely seeking information regardless of any intent to rent. A “tester” who was seeking and got false information was a victim of exactly the kind of discrimination subpart (d) was intended to prevent no matter what they intended to do with that information.

The difference between Havens and Laufer is the lack of any language like “any person” in the ADA. If the ADA were intended to require that disabled individuals be given accurate information about hotel accessibility it would not have defined discrimination in terms of modifications “necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities.” In Havens the tester had a statutorily created interest in accurate information; it was relevant because “any person” had a right to it. In Laufer on the other hand the ADA requires accessibility information only when it is necessary for a disabled person to take advantage of goods, services, facilities etc.

By extension the decision in Laufer v. Mann Hosp. should negate tester standing for all kinds of ADA serial lawsuits. It would require, for example, that a disabled individual who sued over an inadequate accessible parking space at least wanted to park in it. It leaves open the question of whether a tester could sue over an inaccessible website because the Fifth Circuit has not taken a position on whether a website must be accessible because it is a public accommodation (in which case the ADA guarantees a right of equal access) or only because it provides some service that the tester wants to take advantage of.¹ It certainly rejects mere “dignitary harm” as a basis for standing. That takes us to. . .

Going to school with Judge Newsom

The opinion in Sierra v. City of Hallandale Beach, Fla., 2021 WL 1799848 (11th Cir. May 6, 2021) looks at first glance like a standing on air case. The plaintiff was a deaf individual who could not access uncaptioned videos on a municipal website. In a similar case, Price v. City of Ocala, a District Court in Florida had dismissed the plaintiff’s claims, but that case turned on the fact that the plaintiff sought injunctive relief and could not show a likelihood of future harm. One requirement for federal jurisdiction is “redressability,” meaning the court can do something to redress an injury. An injunction requiring an accessible website only helps those who are likely to go back to it, and the plaintiff in Price could not show that likelihood. The plaintiff in Sierra, on the other hand, sued for damages for his past injury. Whether or not he went back was irrelevant.³ The 11th Circuit concluded he had standing to sue because he had suffered a stigmatic injury. The elements of this injury, as described in the opinion, are his “concrete interest in equal treatment” and his being “personally and directly subjected to discriminatory treatment” when the City refused to respond to his requests for some way to access the videos.

Circuit Judge Newsom was content with this outcome, but wrote a lengthy concurrence explaining why he believes the current doctrine of standing based on Article III of the Constitution should be replaced by a standing doctrine based on the separation of powers doctrine and the delegation of executive power to the President in Article II of the Constitution. I won’t try to summarize his argument it since it covers everything from the law of ancient Rome through dissents by Justice Thomas in some more recent Supreme Court decisions. It is fascinating reading for anyone interested in this subject. His conclusion is not that complicated. For Judge Newsom a plaintiff has standing if the plaintiff has a “cause of action.” That cause of acation may be either one of the traditional causes of action at common law or a legal right created by statute that is accompanied by an authorization to file suit. Because Judge Newsom believes that Title II creates a legal right to be “free from disability discrimination” and authorizes a private lawsuit to enforce that right Mr. Sierra has standing to sue under Judge Newsom’s theory of standing.

This brings us back to Ms. Laufer, the Fifth Circuit, and the question of whether Judge Newsom’s re-invention of standing as a constitutional requirement changes the way the courts view serial plaintiffs. It is easy to say that that ADA creates a legal right to be free from disability discrimination, but the definition of “disability discrimination” in the ADA and other similar federal statutes is unusual because it does not just require equal treatment; it also requires special treatment when it is necessary for those with disabilities to have equality of opportunity. That special treatment includes creating physical and internet facilities that meet standards imposed by regulation or the Courts even if no disabled person ever visits the physical or internet facility. As one might expect, this kind of requirement for the public good is enforceable by the Department of Justice even when there is no victim. Under the ADA, FHA and other statutes DOJ can prosecute a case in the name of the United States against a business that violates the accessibility requirements in these statutes whether or not any individual has ever seen or been harmed by the condition.

Did Congress intend that plaintiffs like Ms. Laufer and Mr. Sierra be able to do the same thing? There is language in the legislative history of the ADA and similar statutes suggesting that Congress created private causes of action as a supplement to this executive power to be enforced by “private attorneys general.” That phrase is often used as a justification for letting plaintiffs like Ms. Laufer file suit based on a stigmatic injury. At the same time, the cause of action created by the ADA is always tied back to the definition of discrimination as something that arises when there is a denial of the “full and equal enjoyment” of goods services, facilities and so on. Congress did not create a abstract legal right to be free of disability discrimination, but a concrete right to be free of disability discrimination that denies the plaintiff the full and equal enjoyment of goods and services. There is no “any person” provision of the kind that was crucial in Havens. Nothing in the ADA suggests plaintiffs can sue to vindicate the public interest if they have not themselves been denied the full and equal enjoyment of goods and services.

That is why Judge Newsom’s “cause of action” theory of standing does not really change anything. The “cause of action” created by Congress has as an essential element the denial of an equal opportunity to use goods and services. A plaintiff like Ms. Laufer who admits she never intended to use the goods and services offered by a hotel has failed to plead a cause of action and whether that is a failure to allege standing or merely a failure to allege a claim the result, dismissal, is the same. This is also why invoking “stigmatic” or “dignitary harm” cannot save claims like hers from failing to state a cause of action. Nothing in the ADA forbids making disabled people feel bad. The statute forbids the denial of equal opportunity. Without a denial of equal opportunity there is no discrimination. This probably doesn’t matter in Sierra, where the plaintiff at least alleged that he was denied the equal opportunity to use a specific municipal service – videos on the website. For the many cases filed by Ms. Laufer and other serial plaintiffs it does matter, because even stretching credibility to its limits the most they can allege is that they felt bad when they went to a website without sufficient information. Of course even that is hard to swallow since these plaintiffs are in the business of making money from the ADA and are presumably delighted when they find a website or physical place of business that they can sue. I could write a blog, in fact I have (4), about the unbelievable allegations courts accept in ADA lawsuits, but that is beyond this discussion. The bottom line here is that one Circuit Court,  the Fifth, has adopted a clear-eyed view of ADA standing based on the language of the statute itself rather than what Judge Newsom would call notions of policy. We can only hope the Supreme Court will eventually have the opportunity to follow suit.
¹ See my blog at “Because of Winn Dixie. . .
² Standing issues are a frequent theme in my blogs, starting with “Standing on Air” my ninth blog back in 2012.
³ Cases against municipalities arise under Title II of the ADA, which permits recovery of damages. Cases under Title III of the ADA permit only injunctive relief.