On March 18, 2022, the Second Circuit (covering New York, Connecticut, and Vermont) dismissed a claim under Title III of the Americans With Disabilities Act (ADA) for lack of standing, holding that a website “tester” who solely visited a website without the intention of using it did not suffer any concrete injury. Harty v. West Point Realty (2d Cir. 2022).
Plaintiff Owen Harty, who is disabled and uses a wheelchair, visits travel booking websites to discern if they comply with ADA regulations. Harty alleged that West Point Realty (WPR) failed to comply with 28 C.F.R. § 36.03(e)(1) which requires places of public accommodation that own or operate a place of lodging to “[i]dentify and describe accessible features in the hotels and guest rooms offered through [their] reservations service[s] in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.”
Critically, Harty did not allege that he went to the WPR website with the purpose of visiting a Holiday Inn run by WPR. Instead, Harty visited the website to assess compliance with the pertinent regulation so he could evaluate the accessibility of the Holiday Inn for disabled people. WPR filed a motion to dismiss in the district court alleging Harty lacked standing because he was just a “tester” and had no intention of visiting or staying at the Holiday Inn. The district court granted the motion to dismiss, and a unanimous panel of the Second Circuit affirmed.
The court held that Harty failed to allege a concrete injury in fact. Under well-settled Supreme Court precedent, to establish standing, a plaintiff must show that she or he has an injury in fact, that there is a causal connection between the injury and the alleged misconduct, and that the injury is redressable by a favorable judicial decision. The court relied heavily on the Supreme Court’s opinion last term in Transunion LLC v. Ramirez. There, the Court held that a plaintiff only has standing to seek monetary damages where he or she alleges a statutory violation and, critically, can show a past or future harm beyond that violation itself.
The court held that Harty did not allege in his complaint that he utilized the website to book future travel. Harty acknowledged that his review of the WPR website was done solely as “tester” of ADA compliance. Quoting Transunion, the court wrote that “Article III grants federal courts the power to redress harms that defendants cause plaintiffs, not a freewheeling power to hold defendants accountable for legal infractions.”
Given that Harty asserted no plans to visit the Holiday Inn or the surrounding area of West Point, he did not adequately allege that his ability to travel was in any way hampered by the WPR website in a way that caused him concrete harm. And so, the court affirmed the dismissal of his complaint.
Companies should be aware of this decision, and, more importantly, the tactics used by “testers” who may not be actual consumers but are seeking to evaluate a website’s compliance with the ADA’s accessibility requirements. For more information on the ADA’s accessibility requirements, please see the Disability Access page of our website. If you have any questions about this Alert, please contact the author, Jeff Shooman, counsel in our New York City and Berkeley Heights offices at jshooman@fordharrison.com. Of course, you can also contact the FordHarrison attorney with whom you usually work.