Federal district courts in New York do not agree on whether the ADA covers internet only businesses and, to a lesser degree, on the extent to which website tester plaintiffs have standing. In response professional plaintiffs and their lawyers have been, for several years, filing suit in New York’s state courts.¹ On its face this does not change the basic economics of website accessibility lawsuits. Usually the plaintiff will agree to settle for a price that is just a little less than the cost of any reasonable defense, including a successful Motion to Dismiss. The agreement will usually require remediation as well, but remediation is a good idea in any case and is required if you are sued in a jurisdiction that says the ADA applies to website only lawsuits.
It is becoming clear, however, that in a few cases the procedure in New York state courts may allow a defendant to postpone taking any expensive legal action for months or longer. This is because case activity is plaintiff driven and with plaintiffs attorneys filing hundreds of lawsuits annually they cannot take the action required to move the cases forward. File an Answer and wait seems to work, at least as a means of delaying significant defense costs.
More important, a recent New York decision in Rodriquez v. Bitchin’ Inc., Index No. 152619/2023 (May 3, 2024) points to the real possibility of an effective defense to the claims under New York law that support these New York state court filings. The plaintiff is a typical “tester” plaintiff who has filed dozens of lawsuits, sometimes filing several a day. The complaint was filed without prior notice, which is also typical of these cases. The plaintiff’s lawyer will prefer a surprise lawsuit so the defendant does not have an opportunity to remediate and perhaps moot the substantive claims.²
There were three substantive claims. The first were under NYSHRL Executive Law § 296 (2) (c) and NYCHRL § 8-107 (15). The first of these exactly parallels the ADA provisions in 42 U.S.C. §12182(b)(2) requiring that public accommodations make reasonable modifications to their policies, practices and procedures when necessary for a person with a disability to have equal access. The second New York City law has a similar requirement although it is differently worded. The plaintiff himself gave up this claim because having filed suit without notice he could scarcely claim he requested and was refused an accommodation.
Instead of a modification or accommodation claim the plaintiff relied on disparate treatment and disparate impact claims. These are what you might call the classic kinds of discrimination. A disparate treatment claim says that the defendant treats disabled people differently that non-disabled people. A disparate impact claim says the defendant has some policy or way of doing business that doesn’t seem to single out those with disabilities but in fact has a much greater impact on them.
The relevant provisions of New York State and New York City laws forbidding disparate treatment deserve to be quoted because the exact language was important to the court. The state law makes it unlawful for a public accommodation:
because of the … disability … of any person, directly or indirectly, to refuse, withhold from or deny to [a disabled] person any of the accommodations, advantages, facilities or privileges.
The city law has very similar language, making it unlawful for a public accommodation:
because of any person’s actual or perceived.. .disability… (a) to refuse, withhold from or deny such person the full and the equal enjoyment, on equal terms and conditions, of any of the advantages, services, facilities, or privileges of its place of public accommodation.
The court italicized “because of” because that language justified its holding that the plaintiff did not have a claim. Citing earlier precedent, the court found that the “because of” language meant the plaintiff had to prove the public accommodation had a “discriminatory motive.” In other words, accidental discrimination isn’t enough. Like most testers, the plaintiff never contacted the defendant so there was no way for the defendant to even know the plaintiff was disabled. You can’t intend to discriminate because of a disability if you don’t know the plaintiff is disabled, so it was impossible for the plaintiff to show a discriminatory motive.
The theory of disparate impact was developed long before the ADA was passed to address discrimination that was disguised by apparently neutral rules. There is not a separate “disparate impact” provision in these laws; instead courts say that a neutral looking policy that has a disparate impact discriminates “because of” the plaintiff’s disability. This requires proof that some “facially neutral policy or practice” of the Defendant falls more harshly on blind people than others.
The problem for the plaintiff was that he could not find a “policy or practice” that had the effect of discriminating. He had no evidence that the defendant had a policy or practice of keeping the website inaccessible and of course no business is likely to have such a policy. The plaintiff tried to get around this by claiming the website itself was a policy or practice that had a disparate impact on the blind because it was not accessible to the blind. Here he ran into a catch 22. For the website to be covered by the state and city laws it had to be a kind of place; that is, a “public accommodation.”³ The Court rejected this idea, holding that a place is not a policy and a policy is not a place.
There are a few noteworthy points about this decision. First, some federal courts hold that a plaintiff is not required to prove intentional discrimination in order to prove a violation of the federal ADA prohibition on discrimination in 42 U.S.C. 12182(a). See, Erasmus v. Chien, 650 F. Supp. 3d 1050, 1057 (E.D. Cal. 2023). This and other cases from California rely on a 9th Circuit case whose holding was limited to claims under California state law, so its authority is shaky. A better view taken by federal courts is similar to New York state law. To prove intentional discrimination the plaintiff must “present evidence that animus against the protected group was a significant factor in the position taken’ by Defendant.” Davis v. Wild Friends Foods, Inc., No. 22-CV-04244 (LJL), 2023 WL 4364465, at *8 (S.D.N.Y. July 5, 2023). Whether New York law is satisfied by the “significant factor” standard is for another blog. Even if “significant factor” meets the requirements of the New York statutes, plausibly pleading an intent to discriminate against those with disabilities will be difficult most cases.
In theory this plaintiff’s problem – no claim of a discriminatory policy – could easily be solved. Just claim there is such a policy and try to settle the lawsuit before the defendant proves it isn’t true. Even the most aggressive ADA serial filers are usually not willing to make this kind of claim because pleading something without a good reason to do so can get the plaintiff and their lawyer in trouble.
What plaintiffs do instead is allege the defendant has a policy of not maintaining an accessible website because it either does not have a policy at all or has the wrong kind of policy. This kind of policy or practice claims appears in almost all pleadings by serial plaintiffs that I have seen, including those filing in New York state courts. It seems unlikely the judge who decided Rodriquez v Bitchin’ Inc. would agree that no policy concerning website accessibility is the same thing as a policy that had a discriminatory effect or that a policy about website accessibility could be discriminatory just because it didn’t always work.
As an interesting post-script, the Supreme Court decision in Rodriquez v Bitchin’ Inc. was appealed, but the appeal was dropped before the appellate court made any decision. I suspect the plaintiff decided they were better off with a bad decision (for the plaintiff) by one lower court judge than a bad decision from the appellate court. At the lowest court level every judge can make up their own mind and ignore what the judge down the hall thinks. When the appellate court speaks, every lower judge has to fall in line.
Rodriquez v. Bitchin’ Inc. may be a one off decision that no other judge follows, but it does provide defendants and their lawyers with an argument that has worked and might work with other judges. At the very least it improves the bargaining position of all defendants because it increases the risk to a plaintiff that their state court lawsuit might be lost because the law just doesn’t apply.
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¹ See the Court’s discussion in Mejia v. High Brew Coffee, Inc., Case No. 1:22-CV-03667-LTS (SDNY Sept. 30, 2024).
² A claim is “moot” when there is nothing useful for the Court to do. In a lawsuit demanding that a website be made accessible making it accessible moots the case and, in federal cases under the ADA, requires that it be dismissed. Mooting a case is harder than it might appear, but no plaintiff wants to invest in a lawsuit that disappears before it gets going. See, Mootness is the Kraken of ADA Defenses
³ The same is true under the federal ADA. Whether a website is a “public accommodation” is a hot topic on which the federal courts do not agree.
