Companies face broadened exposure to discrimination claims under the Americans with Disabilities Act if the U.S. Supreme Court gives website users standing to sue even if they have no intention of patronizing companies’ brick-and-mortar businesses, Kaufman Dolowich Partner Edwin Cruz told Legal Dive.
The court in October heard oral arguments in Acheson v. Laufer, a case involving an ADA requirement that hotel websites list the accessible features of their property so people can book a room knowing their disability can be accommodated.
But the implications for business go beyond the hotel industry because the court could give people on a company’s website looking for accessibility information standing to sue for injunctive relief even if they have no intention of physically going to the business.
Without that intention, they face no risk of accessibility-related harm, raising the question of why they’re entitled to injunctive relief, critics say.
“If you have no intention of visiting the hotel, then how are you in imminent danger of future harm by not learning online about the hotel’s lack of accessibility?” Cruz said. “You’re not.”
Expanded Title III standing
A worrisome scenario for any company whose website provides information about its brick-and-mortar business is that anyone can sue – what’s known as Title III standing – if they feel the website isn’t adequate in describing the physical location’s accessibility.
“If you’re in Fort Lauderdale and on a website for a business that only has stores in Pensacola, what’s the likelihood you’re going to go to Pensacola to visit that store?” Cruz said. “I’m having a hard time visualizing a scenario where the Supreme Court would rule that you don’t need to have that intent to visit, because otherwise there would be no actual controversy. You need actual controversy to file a lawsuit in federal court.”
The American Civil Liberties Union and other supporters of the plaintiff in the case, a tester who looks at hotel websites for ADA compliance, say the issue isn’t about someone discovering, once they arrive at a physical location, that they were kept in the dark about accessibility by the absence of information on the website; it’s about the indignity they experience while on the website itself.
“When a hotel website fails to include its accessibility features, it is essentially posting a sign saying ‘no disabled allowed,’” Susan Mizner, director of the ACLU’s disability rights program, says in a statement. The ACLU has filed an amicus brief in the case.
That is a kind of “dignitary harm” that occurs regardless of whether a person actually goes to the physical location at issue, the ACLU argues in its brief.
“The Americans with Disabilities Act [is intended] to allow all people to fully participate in public life, rather than be shut out and stigmatized,” said Carol Garvan, legal director of the ACLU in Maine, where the hotel in the case is located.
The court hasn’t indicated when it will release a decision.
