Along the way the Court observes that there are many causes of homelessness, including among others mental illness and drug addiction. As a lawyer who spends his time thinking about the ADA my immediate response was that there are ADA implications. Title II of the ADA prohibits discrimination against those with disabilities by cities and other non-federal governmental authorities. The ADA regulations say this requires that:

A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity.¹

Mental illness is often a disability, and it isn’t hard to imagine the argument that enforcement of a no-camping law should be modified because the effect of such laws falls most heavily on those whose mental illness is the cause of their homelessness.

This isn’t a novel idea. In Ravenna v. Village of Skokie, 388 F. Supp. 3d 999, 1003 (N.D. Ill. 2019) the District Court found a mentally woman stated a Title II claim when she was arrested for disorderly conduct that was caused by her mental illness even though the Village knew she was mentally ill. In Durr v. Slator, 558 F. Supp. 3d 1, 32 (N.D.N.Y. 2021), the District Court summarized earlier decisions to conclude that Title II might be violated when “police wrongly arrest someone with a disability because they misperceive the effects of that disability as criminal activity.” If a person is homeless because of mental illness and therefore won’t seek shelter provided by a third party and must sleep somewhere a town or city should arguably modify enforcement of a “no camping” law to permit sleeping in a public place without criminal penalties.

There are, of course, a host of practical problems. The Supreme Court observed that homelessness has many causes, many of which are not related to any kind of disability. Homeless encampments presumably include individuals who are not disabled, and sorting out the disabled from the not disabled isn’t likely to be easy. There is also the “fundamental alteration” exception to the accommodation policy and the argument that no matter what the cause of homelessness, making an exception to enforcement of a no-camping law would do what it has in fact done in many cities; that is, make public places unusable by ordinary citizens who are not homeless. Those are, however, the kinds of problems of which Justice Gorsuch says:

Through their voluntary associations and charities, their elected representatives and appointed officials, their police officers and mental health professionals, [the American people] display that same energy and skill today in their efforts to address the complexities of the homelessness challenge facing the most vulnerable among us.

I am sure that in the wake of Grants Pass v Johnson advocates for the homeless will be looking for ways to at least exempt those with disabilities from no public-camping laws just as cities and municipalities look for reasons to enforce those laws against everyone, including the disabled. What almost certainly will not happen is that federal judges will be disentangled from ruling on questions of public policy. Justice Gorsuch, citing Justice White’s dissent in the Robinson case wrote that:

Nor can a handful of federal judges begin to “match” the collective wisdom the American people possess in deciding “how best to handle” a pressing social question like homelessness. 

Unfortunately, Congress has, in essence, delegated a large swath of public policy concerning those with disabilities to the courts because the courts are the ultimate decision makers with respect to what the ADA requires. This is always good for lawyers. Whether it is good public policy is a question that could not even be adequately discussed in the space of a thousand blogs like this one.

++++++++++++++++++++++++++++++++++++

¹ 28 CFR §35.130(b)(7) 

In my last blog I looked at the problems associated with defining disability discrimination in terms of conformance to a technical standard that cannot in practice be consistently met by modern websites.² That problem is compounded in the new regulations by the restrictions imposed on alternate conforming versions of a web page. As DOJ explains: “conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations.” Note the words “not possible,” which is to say “impossible.” Since everything is possible given money and time there is in effect no exception at all.

The rationale for this restriction is the fear that while alternate conforming versions are by definition perfectly equal to the original web page, DOJ doesn’t think Title II entities will do what this requires: Here is what DOJ says:

As WCAG 2.1 defines it, a conforming alternate version is a separate version of web content that is accessible, up to date, contains the same information and functionality as the inaccessible web content, and can be reached in particular ways, such as through a conforming page or an accessibility-supported mechanism. However, the Department is concerned that WCAG 2.1 could be interpreted to permit a segregated approach and a worse experience for individuals with disabilities. The Department also understands that, in practice, it can be difficult to maintain conforming alternate versions because it is often challenging to keep two different versions of web content up to date. For these reasons, as discussed in the section-by-section analysis of § 35.202, conforming alternate versions are permissible only when it is not possible to make web content directly accessible due to technical or legal limitations.

Let’s break this down.

First sentence – WCAG 2.1 requires that alternate conforming versions provide all the same information and functionality as the original version. In other words, an alternate conforming version provides equality of program access, which is exactly what the ADA requires for Title II entities.Providing an alternate conforming version as defined in WCAG 2.1 perfectly satisfies the ADA’s requirement of equal opportunity for those with disabilities.

The third sentence reveals DOJ’s arrogance in matters of technical regulation. WCAG 2.1 AA, including the use of alternate conforming versions, was developed by the World Wide Web Consortium, which brings together the most sophisticated and most knowledgeable institutions and people involved in web design from around the world. WCAG 2.1 AA allows alternate conforming versions precisely because the best technical minds in the world think it can be done. DOJ’s collection of lawyers and bureaucrats disagrees. Perhaps they are right, but it hardly seems reasonable for an agency like DOJ to simply throw out a possibility created by W3.

DOJ’s real problem with alternate conforming versions is found in the second sentence.  DOJ is “concerned” that allowing alternate conforming versions will be interpreted to permit a “segregated approach and a worse experience.” The “worse experience” part of this sentence doesn’t make sense. If the alternate conforming version provides a “worse experience” with respect to access to content and functionality then it isn’t an alternate conforming version anymore. Equality is built into the definition of alternate conforming version. If by “worse experience” DOJ is comparing the experiences of those with and without disabilities then it doesn’t make sense at all. Those with disabilities will always have a different experience of a website than those without, but that is true of  experiencing the world as a whole. I do not have the same experience of the world as a person who is blind or deaf or confined to a wheelchair. I may think their experience is “worse” than mine, but that is the kind of value judgment based on my perspective as a seeing person about the experiences of others that leads to irrational discrimination against those with disabilities. The notion of a “worse” experience only reinforces discriminatory attitudes and has to be rejected.

That brings us to “segregated approach,” which is, I think, DOJ’s real problem with alternate conforming versions. To understand this it is helpful to go back to Olmstead¹, a case in which the Supreme Court found that state and local governments could not unnecessarily segregate those with disabilities from others. In other words, you can’t just put everyone with a disability in a special facility, no matter how nice that facility might be or how much those without disabilities think it is good for those with disabilities. DOJ is concerned that sending those with disabilities to an alternate conforming version of the main web page is like sending everyone who is deaf to a special facility for the deaf, or everyone who is blind to a segregated school for the blind.

Segregation is bad and it is among the things the ADA is intended to eliminate; however, it doesn’t make any sense to think of a website as a place where people might be segregated. A website is a computer program(5) that interacts with a user using a computer. A mobile app is a computer program that interacts with a user using a mobile device. The user’s experience is delivered by what amounts to the facade of the website. For a sighted user that facade is the screen, keyboard and mouse. For a blind user it is speech from screen reading software plus the keyboard. For both, if the website functions as intended, what happens behind that facade is irrelevant to their experience. A blind user who interacts with an alternate conforming version of a web page won’t have an experience that is different in a meaningful way from their interaction with a main web page that meets WCAG 2 AA standards because they don’t, and in fact cannot, know what is happening behind the facade.  The whole point of alternate conforming versions is they must, by definition, deliver the same interactive experience as the main web page to the extent the user’s disability allows it.

This point is easy to see if you compare the experience of going to a movie with the experience of seeing a movie on a website. A deaf person who goes into a theater sees the other patrons, maybe smells them as well, bumps into people who sit too close and may have to stretch to see over someone taller. The deaf person cannot hear, but with captions they can come as close as technology allows to having the same experience as everyone in the room. If that same deaf person logs in to their computer or phone to watch a movie they will see the images and can read the captions, but they will not have the experience of being in a crowd.  There may be a million other people watching the same movie at the same time, but the deaf person will never see, smell or touch them. It would be wrong to segregate the deaf movie goer in the real movie theater because it would deny them as much of the shared experience as their disability permits. It doesn’t matter if they are “segregated” by having the movie delivered from one web page instead of another because there is no shared experience to lose.

DOJ’s objection to alternate conforming versions is ultimately ideological. DOJ believes that because segregation is bad, providing two doors into the same room cannot be allowed even if creating two doors is much easier and cheaper than trying to make one door that everyone can fit through. Like many decisions driven by ideology this one is more likely to diminish the usefulness of the internet for everyone than to improve its usefulness for those who are disabled. In many cases the easiest way to make a single webpage conform to WCAG requirements is to reduce its complexity and functionality, because the less it does the fewer things must be done to meet those requirements. Adopting a complex technical standard of accessibility for websites, and then denying Title II entities the option of meeting that standard in a way that the standard itself recognizes as acceptable is simply a bad way to implement the equality mandate of the ADA. The ADA was not intended to create equality by bringing everyone down to the same low level of participation in the economic and social life of the United States. It was instead to raise the ability of those with disabilities to equality with the current standards enjoyed by those who are not disabled. Alternate conforming versions do just that, and if an alternate conforming version of a web page is the simplest or cheapest way to improve access for those with disabilities, no Title II entity should be forbidden to that technique for delivering programs and services.

+++++++++++++++++++++++++++++++

¹ Olmstead v. LC, 527 U.S. 581 (1999).

² The proof of this, as I noted in my last blog, is that DOJ and the rest of the federal government have not been able to meet the WCAG 2.1 AA standard despite having had several years to implement it.

³ A blind person will never see the pictures. A deaf person will never hear the sounds.

(4) Treating the website as a “program” of the local government.

(5) That’s an oversimplification, but it is true in essence.

The new regulations require that local governments perfectly meet an impossible to meet technical standard. I say impossible to meet not only because every expert I’ve talked to agrees with this, but also because the biggest government of all – the federal government – hasn’t managed to comply with it.¹ If the Department of Justice cannot manage to comply with WCAG 2.1 AA how does it expect Smallville U.S.A. to do so?² This is not an idle question. Section 508 of the Rehabilitation Act – which governs federal website accessibility – does not provide for a private cause of action in most cases.³ Title II of the ADA, on the other hand, allows anyone claiming an injury from an inaccessible website to sue the state agency or municipality that operates it. It’s easy to impose a standard on others that you don’t have to meet yourself, and that what DOJ has done.(4)

This isn’t to say it is easy to define a rule about what the world should be like that makes sense in the world that exists, especially when the rule applies to a huge range of entities with a huge range of budgets. In this case though there is a fundamental problem DOJ has not recognized; the three way disconnect between the complexity of a website, the size of the entity that maintains it, and the cost of bringing it into conformance with WCAG 2.1 AA.

One of the tenets of the original ADA regulations concerning physical accessibility was that the cost to implement them would be modest in new construction and limited in old construction to what was “readily achievable.” Concrete ramps, accessible parking signs, wider doors and the like are relatively cheap. Where changing an existing building under the readily achievable standard the kinds of changes that are very expensive – such as those that require work on a load bearing wall – are recognized as being unduly burdensome.(5) There is no similar exception in the new website design regulations. They do recognize the possibility of an undue financial burden, but DOJ seems to have adopted a standard that any cost up to 1% of the budget of the entity in question is not too burdensome. 1% is a significant chunk of the budget for any municipality and a number high enough to mean “undue burden” will never be a good defense.

That 1% number comes from DOJ’s estimate of the costs and benefits of the new regulation. For small entities DOJ’s figures show much smaller annual costs for compliance over a ten year period, but of course under these regulations any website remediation must be accomplished within three years, not ten. In addition, ongoing costs of around $10,000 a year (DOJ’s estimate for small towns) bear no relation to the immediate cost imposed by the regulation.(6) Most important, looking at average costs based on entity size disregards the reality that website complexity is not related to entity size. One promise of the internet is that it allows even the smallest entity to provide services it could never afford to provide any other way. However, if a small town website offers the same services as the website of a much larger city, the cost of compliance will likely be the same for both despite the very unequal impact on their budgets. The immediate impact of the rule, at least for covered entities that try to comply, will likely be that smaller entities with more limited budgets begin to scale back the services they offer on the internet so they can more easily comply with WCAG 2.1 AA. Creating equality by making the internet less useful for non-disabled users is a poor way of accomplishing the goals of the ADA.

DOJ did face a real problem when developing these regulations; that is, the ability to create accessible websites and applications at a reasonable cost depends on the existence of tools and trained developers. DOJ’s cost estimates for smaller Title II entities were based on looking at about 87,000 counties, towns, junior colleges and other entities. If all 87,000 tried to find the resources needed for WCAG 2.1 AA compliance the existing accessible development community would be very happy, but also overwhelmed.   When too many customers chase too little talent the result is an inevitable increase in costs, something it does not appear DOJ has taken into account.

I do have a positive suggestion for what DOJ could do. DOJ should have adopted a perfectly fair implementation deadline; that is, Title II entities would be required to conform to WCAG 2.1 AA just as soon as the General Services Administration reports that all websites covered by Section 508 of the Rehabilitation Act conform to WCAG 2.1 AA. More seriously, DOJ could agree that a website satisfies the requirements of the ADA if it delivers the essential services it was intended to deliver in a non-discriminatory manner. I’ll discuss the difference between the idea of a website as a means of delivering services and a website as a place in my next blog. In the meantime, I think it is fair to say the adoption of an impossible to meet technical standard was simply a very clumsy way and even ineffective way to accomplish what the ADA is intended to accomplish.(7)

+++++++++++++++++++++++++++++++++++++++++++++++++++++

¹ A recent GSA survey of government websites found “The government as a whole is not meeting the minimum standard or legal obligation to provide equal access to all members of the public and federal employees with disabilities.” To be more specific, more than 70% of federal government websites do not meet the Section 508 standard, which is, by the way, WCAG 2.1 AA.  See, GSA Report. There is, however, a big difference between the federal government and state and local governments. Section 508 does not let ordinary disabled citizens sue the federal government because it failed to provide equal access to its websites. The ADA does permit private lawsuits, exposing Title II entities to litigation risks and costs that DOJ, as a federal agency, will never face. It’s easy to make rules for others that you don’t really have to adhere to yourself.

² Some DOJ websites had very high conformance ratings, but many did not or had not been tested.

³ See, D’Amore v. Small Bus. Administration, No. 21-CV-01505 (CRC), 2021 WL 6753481, at *3 (D.D.C. Sept. 16, 2021) for a discussion of the limited availability of a private cause of action against federal agencies for violations of the Rehabilitation Act.

(4) Technical standards that must be perfectly met are the serial lawsuit filer’s dream because it is easy to file a suit in good faith over what may be trivial failures to comply but expense to prove as a defense that the failures do not in fact deprive a disabled user of equal access. This is not a problem for DOJ. It is, of course, required to follow the law; however, the penalty for non-compliance is a mild scolding from the General Services Administration somewhere after page 100 in Appendix D to a 391 page report, and even that comes with GSA suggesting that more money be budgeted for compliance. What agency wouldn’t like more money?

(5) The 2010 ADA Standards for Accessible Design include in the definition of “technically infeasible” work on load bearing walls.

(6) DOJ’s comparison of costs and benefits is somewhat deceptive. In calculating benefits DOJ considered benefits to disabled and non-disabled users alike. If there is a feature in a website that interferes with non-disabled users as well as disabled users then, by definition, the interference is not discriminatory. The ADA prohibits discrimination, not bad web design, and in calculating the benefits of the new regulations any benefit to non-disabled users must be excluded.

(7) Here I will acknowledge another problem DOJ faced. Creating and adopting regulations is a very slow process. Technological change is a very fast process. When DOJ first began work on these regulations a decade or more ago the internet was a very different place and mobile apps as a means of delivering services were far less common.

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.

Like Humpty Dumpty, HUD believes it is the master of the word “handicap.” Among the many lessons to be learned from HUD’s recent charge of discrimination against the Housing Authority of Grapevine,¹ (including the risk of pulling the trigger too soon on efforts to evict a tenant with medical problems) is that HUD continues to assert that the meaning of “handicap” in the Fair Housing Act is the same as the meaning of disability in the Americans with Disabilities Act, a notion that is unsupportable under the ordinary principles of statutory interpretation. This is what HUD says in a footnote to the Charge:

The Fair Housing Act uses the terms “handicap,” whereas this document uses the term “disability.” Both terms have the same legal meaning. See Bragdon v. Abbott, 524 U.S. 624, 631 (1988). 

Bragdon v. Abbott concerned whether HIV infection was a disability as that term is defined in the ADA. As part of its analysis the Supreme Court observed that:

Bragdon v. Abbott, 524 U.S. 624, 631 (1998). The problem here is that Bragdon v. Abbott was decided in 1998, a decade before Congress amended the definition of “disability” in the ADA to make it more expansive. Congress did not amend the definition of “handicap” in the Fair Housing Act, and under the usual rules of statutory construction when Congress changes one statute but not another it is presumed the choice not to amend the parallel statute was deliberate.²

The complainant in Housing Authority clearly had a “handicap” under the definition found in the Fair Housing Act as well as a “disability” as defined in the ADA. The footnote quoted above was, therefore, unnecessary. Why then did HUD feel it was necessary to assert the two words mean the same thing?

One reason might be that “handicap” is no longer an acceptable word to describe the conditions that meet the definition of “handicap” in the Fair Housing Act. Noting this use of “disability” instead of “handicap” to recognize changing usage makes sense. A footnote explaining that “disability” is used to mean the same thing as “handicap” in the brief or opinion avoids confusion while using the more acceptable term. That use does not, however, require the assertion that “disability” in the ADA and “handicap” in the FHA mean exactly the same thing, which is what HUD has done.

The reason, I believe, is that HUD thinks Congress should have expanded the meaning of “handicap” to match that in the ADA. HUD could amend its regulatory definition to try to accomplish this, but of course amending regulations is time consuming, tedious, and subject to review in the courts. Instead HUD seems to have simply taken the position that for its purposes the two words have the same expansive meaning. As a result, housing providers must assume that HUD will issue a charge of discrimination on behalf of an individual who does not meet the FHA’s statutory definition of “handicap” but does meet the ADA’s statutory definition of “disability.” This is important because housing providers are often confronted by tenants or home purchasers whose claim to have a handicap is tenuous at best, especially with regard to mental impairments that have no visible symptoms. When evaluating accommodation requests from such individuals, housing providers must understand that until HUD is required to appear before a federal judge it is a law unto itself. It will ignore what the courts say to follow its own internal policies and getting to court for rigorous application of the law can be had only after spending tens of thousands of dollars in legal fees.³ Dealing with accommodation requests that involve mental impairments requires careful consideration of HUD’s position on the meaning of “handicap” and a strategy that creates a record meeting HUD’s expectation of how housing providers should behave. It can also mean swallowing hard and granting accommodations that are not required by the FHA but are required by HUD’s interpretation of the FHA. You can fight Uncle Sam, but it isn’t cheap.

+++++++++++++++++++++++++++++++++++++++++++++

¹ You can find it at Housing Authority of Grapevine Charge

² See, Rodriguez v. Village Green Realty, Inc., 788 F.3d 31, 40 at n. 10 (2nd Cir. 2015) and see Logan v. Matveevskii, 57 F. Supp. 3d 234, 255 (S.D.N.Y. 2014) for a collection of authorities discussing why the 2008 ADA amendments did not change the meaning of “handicap” in the FHA. The Ninth Circuit has recently disagreed without noting the disagreement in what can only be called a rather slippery argument. See. Socal Recovery, LLC v. City of Costa Mesa, 56 F.4th 802, 811 (9th Cir. 2023), cert. denied sub nom. City of Costa Mesa, California v. SoCal Recovery, LLC, 144 S. Ct. 422 (2023). In any event, the dicta found in Socal Recovery is just that, for it had nothing to do with the outcome of the case.

³ I should note as well that some federal courts may agree with HUD on this issue, so taking the case to court is not a guarantee of success.

After waiting only six days the same law firm filed a new lawsuit against Starbucks, this time in California. The claims are identical; in fact, most of the new Complaint was cut and pasted from the Florida Complaint. It isn’t clear why the plaintiffs’ lawyers decided to move from the east to the west coast – after all, it was only one of the two plaintiffs that had a problem in Florida – but move they did, so the entire process is starting over.(8)

It isn’t hard to predict what will happen next. In Florida, Starbucks, represented by Minh Vu and other attorneys at Seyfarth Shaw, moved to dismiss the Complaint because it failed to state a claim under the ADA.  That motion was never ruled on because of the jurisdiction issue and dismissal, but it is a safe bet that Judge Thurston (the judge in the California case) will soon be presented with an almost identical motion to dismiss. There are no meaningfully different allegations in the California lawsuit, so there isn’t much reason to do more than change the names and file the same motion again.¹

What that means for this blog is that I don’t need to wait to say what Starbucks’ position will be and explain why it is correct. Instead, I’d like to look at an argument Starbucks made in its original motion to dismiss but did not include in its motion to dismiss the plaintiff’s amended complaint, perhaps because it is the kind of fact based argument that cannot easily be raised in a motion to dismiss. I’d also like to consider a bigger question – just when does the basic unfairness of life tip over into the realm of a disability that requires statutory protection.

Under the ADA a disability is “a physical or mental impairment that substantially limits one or more major life activities. . . .” After a pair of  Supreme Court interpretations finding the definition was fairly narrow² Congress amended the ADA in 2008 to explain in some detail just what this did and did not mean. The ADA amendments made it clear that “major life activities” includes “the operation of a major bodily function” including “digestive” functions. Thus, a person who is “substantially” limited in their ability to digest food has a disability. The 2008 ADA Amendments make that clear.

Both the old and new Starbucks cases rest on the claim that lactose intolerance is a disability because those who suffer from it are limited in their ability to digest lactose. The 2008 ADA Amendments made it clear that “substantially limits” no longer means “completely or severely” but leaves open the question of just what it means. The few courts to have considered the matter indicate lactose intolerance is not a substantial limitation on digestion.³ Whether they are right is a question that can be approached in a couple of ways. One is to ask what digestion is all about. Is it about being able to consume every kind of food that any human can consume? In that case any kind of food allergy or intolerance is a disability. Or is it, more sensibly, about being able to obtain the nourishment necessary for a healthy life? Since dairy products containing lactose are not the exclusive source of any nutrient a lactose intolerance does not significantly restrict one’s ability to digest.

One easy way to see that lactose intolerance does not substantially limit digestion is to look at how many people suffer from some degree of lactose intolerance. According to the National Institutes of Health about 68% of the world population suffers from some degree of “lactose malabsorption.”(4) Lactose intolerance, which is simply lactose malabsorption that causes symptoms, is less common, but the term covers a large range of symptoms, including bloating, diarrhea and gas, all of which are symptoms for many people of things like eating especially spicy foods, eating some kinds of beans, and so forth and so on. If indigestion is a disability then almost everyone is disabled. In addition, as the NIH observes, “[m]ost people with lactose intolerance can consume some amount of lactose without having symptoms.” That means, of course, that for a lactose intolerant person the occasional Starbucks latte made with whole milk may not have any effect at all.

The bottom line, looking at disability in this way, is that “lactose intolerance” as such is not a disability. Even for those whose ability to digest lactose is limited the limitation is not substantial because they can consume some lactose with no ill effect. There is some small number or people with severe lactose intolerance, but even those may only be limited in their ability to consume milk and soft cheeses.(5) And, of course, those who cannot tolerate any lactose still have the entire range of non-dairy food products available to them. In fact, lactose intolerance is especially high in parts of the world that do not, or have only recently, relied on cows’ milk as a source of food.(6) Billions of people around the world get along in life without milk products, because in some places most of the population consume little or no milk. If a very large majority of the people in South Asia are lactose intolerant it would be more than a little odd to claim it is a disability. In fact, claiming that a condition common to an identifiable ethnic group constitutes a disability is a common first step to outright racism – “they” must be inferior because “they” are all disabled.

As I said above, this was not the focus of Starbucks’ later brief in the Florida case. It focused instead on the three more technical arguments suitable for an early motion to dismiss; that is:

• If everyone pays the same price it isn’t discrimination on its face.
• DOJ regulations say that a business is never required to change the goods and services it offers and if Starbucks were forced to provide milk alternatives for free it would, in essence, be required to provide such alternatives, and
• The additional charge is not an illegal surcharge(7) because it is not disability related and not imposed only on those with disabilities.

Any of these might succeed and make the question of whether lactose intolerance is even a disability irrelevant, but the question will continue to be important as an example of a broader issue. Should every identifiable impairment be a disability? If not, how do you draw the line between “life isn’t always fair” and “we need to take action to correct a real injustice.” One answer, and the correct answer I think, is to ask whether the condition is one that has traditionally been a source of discrimination. The ADA is an anti-discrimination statute whose purpose was to combat discrimination against those with disabilities. The evil of that kind of discrimination lies in its irrationality – those with disabilities should not be treated as incapable in ways that are not related to their disability or when their impairment can be overcome with relative ease. There is no history of irrational discrimination against those with lactose intolerance; indeed there is no history of such discrimination at all. The same can be said of many other allergies and digestive problems. Behind all the definitions and statements of Congressional intent lies the problem of irrational discrimination, and that is the ultimate test of whether any condition constitutes a disability. Under that test lactose intolerance is not a disability at all.

+++++++++++++++++++++++++++++++++++++

¹ The new Motion is likely to be a little bit different because Starbucks’ lawyers now know from the Florida case what the plaintiffs’ lawyers are likely to do, so they will anticipate those arguments in their motion. And they will inevitably change things they wish they had said better the first time around. I’ve never met a lawyer that didn’t want chance to improve on their last brief.

² Sutton v. United Airlines, Inc., 527 U.S. 471 (1999); and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002).

³ See, e.g., Griffin v. United Parcel Service, Inc., 661 F.3d 216 (5th Cir. 2011).

(4) See, Lactose Malabsorption NIH

(5) The bacteria that create cheese consume lactose, so hard cheeses do not contain significant amounts. Lactose in hard cheeses

(6) See Regional Lactose Intolerance

(7) Businesses are not permitted to charge more for goods or services to cover the supposed expense of making them usable by those with disabilities. You don’t have to offer accessible goods or services, but if you do so you can’t charge more than you charge for otherwise identical goods or services.

(8) Keeping up to date, similar lawsuits have been filed against Dunkin’ Donuts – Case No.3:23-cv-06621 in the Northern District of California and International Coffee & Tea – Case No. 2:24-cv-03132 in the Central District of California. In the Dunkin’ Donuts case a Motion to dismiss has already been filed, but has not yet been decided.

I’ll start with the good news of an apparent trend in ADA website cases filed in the Southern District of New York. The most recent case is Martin v. Second Story Promotions, Inc., No. 1:22-CV-10438 (MKV), 2024 WL 775140 (S.D.N.Y. Feb. 26, 2024), a decision by Judge Vyskocil. The case was a typical³ serial filer suit alleging that a website was not accessible and therefore violated Title III of the ADA.  Judge Vyskocil dismissed the case because the necessary allegations were not sufficiently specific. As she observed:

She did not say what I think is obvious; that is, these allegations were not included because the plaintiffs could not have included them and told the truth. It was a victory for common sense and the Case and Controversy clause in Article III of the Constitution.

Judge Vyskocil is not alone in her views of this kind of pleading. In fact, the most recent decisions from the Southern District of New York seem to show a clear trend toward finding that serial filers do not have standing after the 2nd Circuit’s decision in Calcano v. Swarovski North American Limited (4). See, Feliz v. IHealth Labs Inc., No. 23-CV-00354 (JLR), 2024 WL 342701, at *5 (S.D.N.Y. Jan. 30, 2024), Loadholt v. Oriental-Decor.com Inc., No. 22CV8205ASRWL, 2024 WL 78243, at *1 (S.D.N.Y. Jan. 4, 2024), report and recommendation adopted, No. 22-CV-8205 (AS), 2024 WL 247107 (S.D.N.Y. Jan. 23, 2024), and Zinnamon v. Profound Color, LLC, No. 1:23-CV-2722-LJL, 2023 WL 6882415, at *3 (S.D.N.Y. Oct. 17, 2023) and Dawkins v. Schott NYC Corp., No. 22CV3617PKCTAM, 2023 WL 6283285, at *5 (E.D.N.Y. Sept. 26, 2023).

This does not mean, however, that the battle is won. Judge Liman, who has dismissed ADA website cases based on lack of standing, found that standing was sufficiently pled in Davis v. Wild Friends Foods, Inc., No. 22-CV-04244 (LJL), 2023 WL 4364465, (S,D.N.Y. July 5, 2023). More important, the pleading defects in all the cases cited above can be fixed by simply making the plaintiff work a little harder to provide more specific allegations. Those allegations may not be true, but these cases settle because it is cheaper than winning at trial. If a pleading can withstand a motion to dismiss, settlement will remain the cheapest option and serial filers will continue to file suit.

Turning from the ADA to the Fair Housing Act and my own cases, it is worthwhile to compare two decisions in cases brought by the same serial FHA filer, Dana Bowman. In an unreported opinion dated February 13, 2024 Judge Reed O’Conner denied the defendants’ Motion to Dismiss based on standing, relying on the Supreme Court’s decision in Havens Realty v Coleman and earlier decisions in favor of Bowman from other district courts. See, Bowman v. Shannon Creek  et al, Case No. 4:23-cv-00325-O (N.D. Tex. Feb. 14, 2024). The opinion is brief and contains no analysis of TransUnion or any of the Laufer cases, so there isn’t much to learn from it except that a defendant can lose a motion to dismiss in the Northern District of Texas.

Judge Brantley Starr’s decision in Bowman v. SWBC Real Estates Services, LLC, No. 3:23-CV-00970-X, 2024 WL 1123035, at *5 (N.D. Tex. Mar. 14, 2024), on the other hand, contains a reasonably detailed and very interesting analysis of FHA and ADA standing in cases involving multi-family housing. The analysis begins with a show of independance, for Judge Starr writes that: “The parties point to other non-binding cases, but the Court opts to stick with the cases that bind it.” Those are, of course cases from the Fifth Circuit and Supreme Court; not the district court cases holding in Bowman’s favor.

Judge Starr begins his analysis by observing that in public accommodation cases under Title III of the ADA plaintiffs have standing with respect to barriers to access in public areas because they are an invitee. They do not have standing for non-public areas that they cannot lawfully enter. After finding that Bowman failed to state a claim under Section 3604(f)(1) of the FHA because he did not allege any interest in buying or renting an apartment, Judge Starr turns to Section 3604(f)(2), which more broadly covers the privileges associated with renting an apartment, Judge Starr begins with his ADA analogy to distinguish accessibility barriers in places  to which Bowman had “lawful access” and those he did not.

If these [thermostats and bathrooms] were in common use areas of a dwelling Bowman had a lawful right to enter, they seem fair game for him to sue. If Bowman is complaining about thermostats and bathrooms in rented units he has no right to access, then it does not seem that he encountered those barriers or was harmed by them—predicates to standing in any case.

Bowman v. SWBC Real Estates Services, LLC, 2024 WL 1123035, at *4.  Bowman was granted leave to replead so it remains to be seen whether he will be able to satisfy Judge Starr with respect to these allegations.

Judge Starr’s opinion finds that Bowman did plead standing with respect to mail boxes and the lack of a route to the public street because these were both things he might encounter in the common areas of the apartments. It is not clear, however, that these allegations can support standing past the pleading stage.(5) While a visitor like Bowman might see an inaccessible mailbox, unless they were expecting mail the inaccessibility would have not real life consequences for them. The same is true of an accessible route from the street for a person who, like Bowman, probably drove to the property.  It might also be true of the bathroom or kitchen in an unoccupied unit shown during a tour of the apartments. One thing Laufer made clear was that merely being aware of a statutory violation is not sufficient to create an injury that gives rise to standing. Unless Bowman needed use a bathroom in a display unit it seems unlikely that a lack of accessibility would create more than the dignitary injury the Fifth Circuit has rejected. Bowman has until April 11, 2024 to replead, so stay tuned.

Taken together, these cases demonstrate that “know your judge” is still critical in defending ADA and FHA serial filer cases. Not only might you get a clear thumbs up or thumbs down, you might also find you have a judge who has adopted a more complex analysis of their own.

+++++++++++++++++++++++++++++++++++++++++++++++

¹ The disclaimer is that I can’t say the result will be the same in other cases, and if you read on you will understand why.

² To avoid a very long string of references I’ll refer you first to Acheson Hotels – I had to say something. in which I review the correct (in my view) legal arguments about this issue and ADA Serial Litigation – Will the Supreme Court cut the head off this snake for footnotes with references to even more blogs on this subject.

³ Typical is something of an understatement. Cases of this kind  are essentially identical except for the name of the defendant and the pet plaintiff on whose behalf the lawsuit was filed.

(4) See my blog at A short sharp shock.

(5) Although Judge Starr did not treat other district court cases as binding, He did look closely at the decision in Bowman v. Wildwood of Lubbock, LLC, No. 5:19-CV-164-H, 2020 WL 10458628, at *5 (N.D. Tex., Oct. 23, 2020). In that case the finding that Bowman adequately pled standing rested in part on Bowman’s use of a wheelchair and allegations that as a wheelchair user he could not even enter some parts of the apartments he visited. Bowman is now able to walk on artificial limbs and apparently does not use a wheelchair when he visits the apartments he sues. That means that while a mailbox or a thermostat might not be accessible to a person in a wheelchair they could still be accessible to him.

The earliest ADA lawsuit alleging that self-service kiosks were not accessible by individuals who are blind seems to be Lighthouse for Blind and Visually Impaired v. Redbox Automated Retail, LLC, No. C 12-0195 PJH, 2012 WL 12964819, at *3 (N.D. Cal. May 18, 2012). In Lighthouse the plaintiff challenged touch screen kiosks used to rent movies. The reported decision does no more than find the case could not be dismissed at the outset; it was later settled as a class action including a requirement that Redbox modify its kiosks to provide tactile keypads and text to voice software that would allow a blind person to hear and make selections. It is notable that in 2012 this solution was seen as technically feasible, which is not surprising since DOJ’s regulations concerning ATM machines and DOT requirements for airport kiosks already included the same requirement.²

A few years later a number of cases found that self-service kiosks were not required to be accessible if there was staff help available for navigating the machine. In West v. Moe’s Franchisor, LLC, No. 15CV2846, 2015 WL 8484567, at *1 (S.D.N.Y. Dec. 9, 2015) the court found that soft drink dispensing machines that could not be used by the blind did not violate the ADA because “effective assistance from Moe’s employees acting as “qualified readers” was sufficient. The court reached the same conclusion in West v. Five Guys Enterprises, LLC, No. 15-CV-2845 (JPO), 2016 WL 482981, at *1 (S.D.N.Y. Feb. 5, 2016). By 2020 the use of staff as readers for self-service kiosks the restaurant business seemed well established. In Williams v. McDonald’s Corp., No. 220CV1214TLNDBPS, 2020 WL 6561305, at *1 (E.D. Cal. Nov. 9, 2020), for example, the case was dismissed for failure to state a claim because, as the magistrate judge wrote,

defendant’s restaurants provide the option of “obtaining [sighted] assistance to operate the kiosk[.]” . . . “ADA regulations make clear that restaurants are permitted to use qualified readers to assist visually-impaired patrons with menu selections.”

The court took a slightly different approach in Natl. Fedn. of the Blind, Inc. v. Wal-Mart Associates, Inc., 566 F. Supp. 3d 383, 398 (D. Md. 2021), finding both that providing assistance was acceptable and, moreover, that no ADA standard applied to self service kiosks:

Whatever the merit of these experts’ testimony, Plaintiffs’ argument is unavailing, as the latest edition of the Design Standards expressly excludes self-checkout kiosks of this nature. The Advisory to Section 707 of the 2010 Design Standards, which governs ATMs and fare machines, provides that “[i]nteractive transaction machines (ITMs), other than ATMs, are not covered by Section 707.” . . . Here, as in Kohler, the absence of an applicable Design Standard demonstrates that Defendant is in full compliance with 42 U.S.C. § 12183, and forecloses an accessible design claim under this provision.¹⁰ A contrary ruling would require this Court to rewrite the Design Standards to fill a void that Congress and the Department of Justice left empty, and “render compliance with these regulations meaningless.

These cases all relied on DOJ’s determination that restaurants did not have to provide braille menus if a member of the staff could read the menu to a person with a vision impairment. If reading a menu was o.k., why shouldn’t the same apply to a touchscreen kiosk? They are also consistent with Redbox, for the Redbox rental kiosks are never staffed.

It is notable that none of these decisions considered the fact that creating accessible interfaces for the blind was technologically feasible. In Natl. Fedn. of the Blind v. Container Store Group, Inc., No. CV 15-12984-NMG, 2020 WL 13878557, at *6 (D. Mass. June 24, 2020), for example, the defendant was able to prevail on mootness grounds because, during the pendency of the lawsuit, it added tactile keypads and other accessibility features to its check-out kiosks. As noted above, these features had been required on ATMs and airport kiosks for years. These decisions permitted staff assistance without regard to a technological alternative.

This brings us to self-service kiosks in medical facilities. In Vargas v. Quest Diagnostics Clinical Laboratories, Inc., 2021 WL 5989961, at *6 (C.D. Cal. Oct. 15, 2021) the district court denied a defense motion for summary judgment claiming that inaccessible check-in kiosks were acceptable because human assistance was available. The ruling was consistent with the cases above because the problem was that human assistance was often not available, leaving a fact issue about whether it was an adequate substitute. By the time of the summary judgment, however, Quest had modified its kiosks to include audible instructions on how to use the kiosk to summon help and to check in without the need to include customer information that could only be done through the kiosk. There was at least a strong argument that assistance was now adequate. To avoid that argument the plaintiffs sought to certify a class of individuals who suffered discrimination because the kiosks were not “independently accessible.” In other words, they argued that having someone help with the kiosk was not enough. The Court certified a class based on that claim and, the following year, ruled in favor the plaintiffs after a four day trial. Vargas v. Quest Diagnostics Clinical Laboratories, Inc., 2023 WL 6447226, (C.D. Cal. Sept. 29, 2023).  The decision rested heavily on the particular facts of the case, including the court’s finding that Quest employees were not always available to help customers who were blind or otherwise unable to use the kiosk. Quest filed an appeal in November of 2023 that is still pending.

While Vargas was moving through one court, Davis v. Laboratory Corp. of Am. Holdings, 604 F. Supp. 3d 913, 919 (C.D. Cal. 2022), aff’d, No. 22-55873, 2024 WL 489288 (9th Cir. Feb. 8, 2024) was moving on a parallel track based on claims that kiosks at Laboratory Corp facilities violated the ADA. Davis made it to the Ninth Circuit before Vargas because the defendants appealed the class certification order before there was a trial or even a motion for summary judgment.

So far this doesn’t seem very exciting. The appeal concerned class certification, not the underlying substantive claim. To certify a class action the District Court must find, among other things, that the members of the proposed class share common legal or factual issues. In the District Court whether the kiosks violated the ADA was just one of the “issues” that justified finding the commonality requirement was met. However, identifying a common issue – whether the kiosks violated the ADA –  is not the same thing as making a finding of fact that the kiosks violate the ADA. At this point it looks like Vargas, with an actual finding that the ADA was violated, is the most important case.

The excitement about Davis stems in part from the sloppy way the opinion was written. In another recent 9th Circuit case³ the Court of Appeals held that proof of the facts necessary for certification of a class should be by a preponderance of the evidence. In Olean Wholesale³ the Ninth Circuit found, in agreement with many other courts, that class action plaintiff must prove that the prerequisites for certification are met by a preponderance of the evidence. None of the certification requirements include a finding that the plaintiff will win. The focus is on the issues in the case, not the ultimate outcome. In Davis the district judge cited this rule as part of his background discussion of his ruling. Notably, he did not make any finding about the ultimate issue; that is, whether the self-service kiosks violate the ADA. In fact, the judge quoted an earlier Ninth Circuit decision holding that the purpose of class certification was not “to determine whether class members could actually prevail on the merits of their claims.”

On appeal, however, the Ninth Circuit wrote as if liability had been established. It begins its opinion by announcing that it will consider whether the plaintiff has standing to sue, a question it seems to have raised sua sponte. Then, after citing to the “preponderance of the evidence” standard the Court reviews the plaintiff’s claims and concludes that the plaintiff “was denied effective communication” and has standing to sue. It appears the  Court of Appeals is finding as a matter of law that self-service kiosks must be independently accessible and that the plaintiff was in fact a victim of an ADA violation. That kind of finding coming from the Court of Appeals is far more dramatic than the trial level decision in Vargas.

I don’t believe though that this is more than sloppy writing by the Court of Appeals, which may have taken a casual attitude toward the decision because it was in an unpublished opinion. A finding of standing for purposes of class certification may involve some analysis of the merits, but that analysis is not intended to be a final determination of the merits.(4)  Deciding whether a customer has in fact been denied effective communication because a self-service kiosk cannot be independently accessed is, as the district court found in Vargas, the kind of factual determination that requires a trial.

Does Davis represent any change in the law? I don’t believe it does. Like Vargas it confirms that just because DOJ guidance allows waitstaff to read a menu to a blind customer and cases extend this to self-service kiosks it does not follow that every self-service kiosk is acceptable under the ADA. When, as in Vargas and Davis, the point of the kiosk is to separate staff members from customers, presumably to cut labor costs, it isn’t likely a staff member will be waiting around to help a blind customer use the self-service kiosk. Equally important, there is a difference between the personal and private information required to check in to a medical facility and a consumers choice to buy Coke instead of Fanta. One of the issues in the Container Store case was that a blind customer would have to provide their ATM PIN to the cashier. Like many other technologies, self-service kiosks are neither always unacceptable nor always acceptable. Meeting the “effective communication” requirement depends on what is being communicated under what circumstances. That has always been the law.

As a final note, this body of case law may soon be superseded by regulation. In June of this year DOJ expects to publish an NPRM for regulations that would impose on all self-service kiosks the same kind of requirements now imposed on ATM machines. For the time being Davis and Vargas illustrate a litigation threat that may be raised by plaintiffs’ firms with the ability and willingness to engage in the complexities of class action litigation. Once regulations are in effect we can expect to see a rash of serial filings by professional plaintiffs, just as happened in 2012 when the ATM regulations went into effect and again in 2015 when early court decisions found that websites had to be accessible. Restaurants and other stores relying on decisions permitting self-service kiosks should be considering how to upgrade their kiosks now, not only to better serve disabled customers, but also to avoid future litigation. Medical service providers using self-service kiosks to gather personal information cannot take any comfort from the fact driven nature of the decision in Vargas or the limited in holding in Davis because in a year or two the outcome of those cases won’t matter. Like many other technologies, touch screens were introduced as convenience for customers and businesses without much thought being given to accessibility. Now is the time for businesses to correct that oversight.

++++++++++++++++++++++++++++++++++++++++++++

¹ You should also look at Bill Goren’s analysis at and the brief summary at Seyfarth Shaw’s adatitleiii.com blog.

² See, 78 FR 67882 (DOT) and 2010 Standards for Accessible Design Sections 220 and 707.

³ Olean Wholesale Grocery Coop., Inc. v. Bumble Bee Foods LLC, 31 F.4th 651, 664 (9th Cir. 2022), cert. denied sub nom. StarKist Co. v. Olean Wholesale Grocery Coop., Inc., On Behalf of Itself and All Others Similarly Situated, 143 S. Ct. 424 (2022)

(4) The distinction between a finding on the merits and the finding necessary to certify a class is described in various ways, but it is clear that as a rule certification of a class is not a determination of the merits. Koss v. Norwood, 305 F. Supp. 3d 897, 915 (N.D. Ill. 2018) includes a good discussion of the various considerations. Without getting too far into the weeds of class certification, it is notable that the Ninth Circuit did not tie the standing issue to any of the four elements required for class certification, and it is those elements that require a preponderance of the evidence. The Ninth Circuit affirmed a class certification order, not a determination that in this particular case the self-service kiosks violated the ADA because there was no such determination in the trial court, which described the kiosks as “allegedly inaccessible”

We have to start with Haven’s Realty v Coleman. This opinion dates from an era in which it was more or less assumed that if Congress created a statutory injury and you suffered that injury you had standing under Article III of the Constitution. That’s why, when asking whether a tester who had no intent to rent an apartment could still sue under the Fair Housing Act the Court was content to observe that the plaintiff suffered exactly the injury Section 3604(d) was intended to protect against. It never asked whether the injury Section 3604(d) was intended to protect against would always satisfy Article III because that was assumed. Based on Haven’s Realty v Coleman, “tester standing” has no constitutional component. It means no more and no less than the tester suffered exactly the injury the statute was intended to prevent.

The old “statutory injury is good enough for the Constitution” notion ended with TransUnion. Whether the statutory injury satisfies Article III is a separate inquiry from whether the plaintiff suffered a statutory injury because Congress’ ability to create causes of action is limited by the Constitution. If Havens Realty v Coleman went before the Court today it would start with the question of a statutory injury, but then ask whether that injury satisfied Article III of the Constitution.

So what about the Laufer cases? There’s a good argument she suffered the statutory injury. DOJ regulations require information on hotel websites. She looked for the information and it wasn’t there. She suffered the very injury – not having information – that the ADA and regulations were intended to prevent. The question then is whether that injury satisfies Article III of the Constitution. Some Circuits say no because she didn’t need the information. Some say yes because even if she didn’t need the information her dignity was affronted when she learned that the hotel had not complied with DOJ’s regulation. When the issue is squarely presented to the Supreme Court I think it will find there is no standing because the so called “dignitary harm” isn’t enough.

This does not mean, however, that Havens Realty v Coleman is dead. One of the peculiarities of the ADA’s definition of discrimination is that discrimination includes treating everyone exactly the same in ways that only harm those with disabilities. It doesn’t matter that a building or website is the same for everyone and it doesn’t matter whether the design was bad because of a discriminatory intent or because of ignorance.  Because of this peculiar definition of discrimination equal treatment is against the law when it comes to building and website design.  It is this kind of “no fault” discrimination that makes serial litigation like Laufer’s possible. Just by looking at a defective building or website a plaintiff like Laufer can claim to be a victim of discrimination and that makes filing hundreds or thousands of lawsuits easy.

This makes plaintiffs like Laufer different in a critical way from the Black plaintiff in Havens Realty. The plaintiff in Havens Realty did not just get false information; he got false information while his White fellow tester was being given true information. That difference in treatment because of race was necessary for a statutory violation to exist. False information alone is not actionable under Section 3604(d). The section is violated by giving false information because of race.  Plaintiffs like Laufer, on the other hand, do fail to get information or see a physical construction defect because they are disabled; they see what everyone sees; it just (arguably) affects them differently.

Although those in the disability rights community probably won’t admit it, there is a qualitative difference between the offense one feels because of being treated differently and the offense one feels by being treated the same when that same treatment has a different effect. In terms of having one’s personal dignity affronted there is a difference between differential treatment with a discriminatory intent and equal treatment with a differential effect that may not involve any intent to discriminate at all.

This, I think, is the distinction that can and should preserve tester standing. Treating a tester differently because of their race, disability, religion or other protected status creates the kind of dignitary harm that may satisfy Article III even if there is no other harm. Treating a tester exactly the same way everyone else is treated does not create that kind of dignitary harm. A rule like this would permit  testing in the ways that it has been traditionally used to root out intentional discrimination but would eliminate the kind of industrial litigation engaged in by Laufer and similar testers under the ADA.

The story is a familiar one. A serial plaintiff, Dana Bowman, sued the owner of an apartment complex and one of its principals for failing to design and construct the apartments in compliance with the design standards in 42 U.S.C. §3604(f)(3)(C). The owner of an apartment complex is liable for such failures, but almost never responsible for them. In most cases either the plans were wrong – in which case the architect or engineer made a mistake – or the contractor didn’t follow the plans – in which case the contractor made a mistake. It is usually a combination of the two.

The owner sought to shift liability to the four entities that provided architectural and engineering services by filing a third-party complaint against them. After some procedural matters were tidied up these third-party defendants sought to have the case against them dismissed because, they argued, federal law preempts any effort to shift liability away from the owner to others through a state law claim for professional negligence. The argument is that if any liable party can shift its liability so some other party it won’t have any incentive to obey the laws. See, Equal Rights Ctr. v. Niles Bolton Assocs., 602 F.3d 597, 602 (4th Cir. 2010). It is an idiotic argument for reasons that I’ve explained in previous blogs.

Magistrate Judge Bray correctly noted that Equal Rights Ctr. only discussed claims for indemnity; that is, claims where the owner sought to shift 100% of the liability to a third party. Passing over various post Equal Rights Center cases at the district court level he turned to City of Los Angeles v. AECOM Servs., Inc., 854 F.3d 1149 (9th Cir. 2017) a case that discussed contribution. A contribution claim seeks to shift to a third party only as much of the liability as they are responsible for. In AECOM the Ninth Circuit found that shifting the appropriate liability to responsible parties was not preempted by federal law, and in fact served the purpose of federal law by giving every party involved in the design and construction of a building or other facility an incentive to follow the law.

Magistrate Judge Bray found that contribution claims against the third party defendants were permitted because, after all, they would only be responsible for FHA violations found in the plans for which they were responsible. The possible role of the contractor in not following plans was not discussed because the owner didn’t seek to make the contractor a party.

The opinion isn’t lengthy and reaches the correct result because the Court did not have to address the problematic distinction between indemnity and contribution in this context. Suppose the architect delivers defective plans and the contractor follows them perfectly. If the architect is liable for its share of responsibility it will have to bear 100% of the loss – there is no one else to blame. From the owner’s perspective the same result is reached if the architect and contractor between them share 100% of the blame. Two claims for contribution amount to one claim for indemnity because if the architect and contractor each bear their fair share of the loss the owner ends up with no responsibility. Depending on the state law of contribution the owner may be out attorneys fees and litigation costs, but won’t pay anything to fix the property.

A distinction between contribution and indemnity based on the percentage of the liability that is shifted from the owner to third parties doesn’t really make sense. There may be public policy reasons not to allow an owner to require the architect or owner to contractually indemnify the owner for more than their share of responsibility but even this is doubtful. When a contractual indemnity shifts liability away from a party who may have no assets (like a single asset entity that has sold the property and distributed the profits) to a party that has assets or insurance, then shifting liability gets the job done by providing money to fix the property. It seems unlikely the Fair Housing Act’s design and construction provisions were intended by Congress as a means of shaming the parties involved in the design and construction of multi-family properties. The goal, I think, was to create accessible housing, and that goal requires looking for money, not punishing parties who happen to have statutory liability for the mistakes of others.²

Rant: assigning moral blame to discrimination defendants dates to the days of race and religious discrimination when an evil intent to discriminate was an element of the claim and the intent to discriminate was clearly evil. Design/build discrimination imposes no fault liability for which having an evil intent is irrelevant. Despite this plaintiffs hysterically treat everyone involved in the design and construction of multi-family housing as having evil intent, comparing even accidental errors in design or construction to the practice of putting out “whites only” signs from the era of legal segregation. Plaintiffs should focus on getting the job done instead of arguments about morality that ultimately result in letting the most responsible parties escape liability.

++++++++++++++++++++++++++++++++++++++

¹ See, Indemnity and Contribution under the Fair Housing Act and the earlier blogs with links within it.

² It is worth noting that even claims for indemnity do not relieve the owner of liability unless the indemnifying party has the money to fix the problem. Contribution and indemnity only improve the likelihood that someone with money or insurance will pay to fix the problem; they do not relieve the owner of its ultimate liability if no one else can pay.

The Supreme Court recognized long ago that Article III of the Constitution only gives federal courts the right to decide “cases” or “controversies.” Those words are in the text of Article III itself. By the 1960’s this requirement was interpreted to mean that the plaintiff had:

such a personal stake in the outcome of the controversy’ as to warrant his invocation of federal-court jurisdiction and to justify exercise of the court’s remedial powers on his behalf.

Warth v. Seldin, 422 U.S. 490, 498–99 (1975) [citing earlier cases]. To have such personal stake required that the plaintiff have suffered or be threatened with an actual injury. The plaintiff could not merely “rest his claim to relief on the legal rights or interests of third parties.” Id. A plaintiff who met the requirements of Article III had “standing” to sue in federal court.

Hand in hand with the development of the idea of Article III standing came the idea of “prudential” limits on standing. Simply put, “prudential” meant that sometimes the federal courts would not hear a case where there was a real injury because enforcement of the law or constitutional provision in question was better left to federal agencies. Of course, it was a different matter when Congress itself gave someone the right to sue. If Congress gave an individual the right to sue then it was hard to say that prudence meant the courts should not hear the case.

That brings us to Havens Realty v. Coleman, the case often cited for the proposition that “testers have standing.” It was a classic tester case – a white tester and a black tester asked about the availability of an apartment. The white tester was told it was available. The black tester was told it was not. A crystal-clear case of racial discrimination in violation of the Fair Housing Act. However, neither tester really wanted to rent an apartment. The defendant claimed that without any desire to rent the black tester suffered no harm from being lied to and therefore lacked standing to sue. The Supreme Court disagreed. It pointed out that the FHA has a specific provision (Section 3604(d)) making it unlawful to give false information to someone based on their race. Because the black tester suffered exactly the injury the FHA was intended to prevent he had standing.

The key thing to notice here is that the Supreme Court said, in essence, if Congress gave someone the right to sue then their statutorily defined “injury” would enough to satisfy the Constitution. Congress could decide who met the requirements of Article III of the Constitution.

We’ll skip the next 36 years of legal developments to keep this blog a reasonable length. In 2021 the Supreme Court decided, in TransUnion that Congress could not create a right to sue and expect the statutory injury would automatically satisfy the requirements of Article III. Congress could create a statutory injury but only the Supreme Court could decide whether the statutory injury was good enough for Article III. In TransUnion the Court decided that some of the victims of the law concerning credit reporting had suffered an injury sufficient for Article III standing, but others who were also victims with a right to sue had not because they had not been affected in any way by the violation.

The problem for tester standing is obvious. If the black tester in Havens Realty had only suffered a statutory injury (being lied to) but that did not result in any real injury (because the truth didn’t matter) maybe tester standing was not enough to satisfy Article III of the Constitution. Soon there were soon both scholars and bloggers like me suggesting that Havens Realty might be dead and tester standing along with it. If testers didn’t want to rent an apartment, use a website, or buy from a business then being turned down because of race or disability didn’t matter and Article III was not satisfied.

This is why there is so much riding on Arpan Hotels v. Laufer. Laufer goes to hotel websites to see if they have the information about accessibility required by ADA regulations. She does not intend to go to the hotel, she wants the information for its own sake. If it is missing, she sues. That sounds very much like the black tester in Havens Realty, who was entitled to truthful information although he had no use for it. If Laufer does not have an injury that satisfies Article III then fair housing testers might not either and so a victory for the hotel could spell the end of FHA testing as well as ADA testing.

The case is in the Supreme Court because different courts of appeal have different views of whether a plaintiff like Laufer has standing after the TransUnion decision. The pro-Laufer courts of appeal say that she suffered either or both of an “informational injury” or a “dignitary harm.” The argument for an “informational injury” is simply that if Congress says you have a right to information then being deprived of that information is a real harm because you have a right to it. It doesn’t matter whether you needed it or not. The “dignitary harm” argument is that those with disabilities and others that have been discriminated against feel a special emotional distress when they see violations of the anti-discrimination laws even if the violation doesn’t make any difference to them other than making them feel bad.

These arguments are still possible because the Supreme Court found it hard to precisely define just what Article III requires. The conservative members of the Court look to the law as it existed in the late 18^th century when the Constitution was written as a guide what it means. The common law causes of action that existed at the time were the starting point for finding a sufficient injury for Article III. If an injury looked like an injury that you could sue for in 1789 then it was good enough for the Constitution. The Court recognized that there could be newer kinds of injury, but similarity to common law injuries was key. They also looked back to Warth v Seldin and the concern that if anyone could sue to vindicate the public interest, rather than their own private interests, you might get private law enforcement that interfered with the agencies charged to protect the public interest. Based on earlier cases like Spokeo Inc. v. Robins the Court found that a injury had to be “concrete” and “particularized” to satisfy Article III.

It isn’t hard to see how the arguments line up for and against standing for testers given these parameters. Those who believe Laufer should have standing argue that once she was given a right to information taking it away from her was very much like common law claims related to theft. This argument was aided by the Supreme Court’s recognition in cases like Fed. Election Commn. v. Akins that an informational injury could support standing. TransUnion suggested that informational injury could stem from being denied information that was required to be publicly available (good for the Laufer side) but insisted that it also had to “downstream consequences” or “adverse effects.” (not so good for the Laufer side).

There is also the argument that Laufer and other testers suffer a “dignitary harm” similar to that suffered by those who are defamed. The Supreme Court has often recognized that dignitary harms can be actionable, so they neatly fit the “like the common law” requirement. The Justices even glanced at the question of whether a dignitary harm was sufficient for standing in Trump v. Hawaii, but just long enough to say they didn’t have to answer that question. The problem here is that dignitary harm is usually actionable only when there is some other harm – for example to reputation. Equally important, if information is supposed to be available to all the dignitary harm suffered by a tester like Laufer is indistinguishable from the harm suffered by every other person who wants but cannot find the information. If invoking “dignitary harm” allows someone with no distinct interest in the information to have standing we are back to individuals who sue to enforce the public interest rather than their private interests.

So, does Laufer being offended by a statutory violation constitute a sufficient harm for Article III? The ultimate argument on the pro-Laufer side of the dispute about standing goes like this:

• Being subjected to discrimination (as in Havens Realty) is bad in a way that has been recognized in many cases. No one should be treated differently because of their race or disability, regardless of the circumstances.
• Not including accessibility information on a hotel website is defined as a kind of discrimination in the ADA. It may not be treating people differently, but it is “discrimination” because Congress said it is.
• Thus even though both the non-disabled and disabled are treated the same because neither gets the information, the “discrimination” is just as bad as if they were treated differently.

It is a tortured argument because, of course, treating people the same isn’t the same as treating them differently. The most important holding in TransUnion is that Congress cannot create an Article III injury just be defining a statutory violation as an actionable injury. The ADA and FHA both recognize that equality of treatment may not result in equality of opportunity and so in some cases they define “discrimination” as equal treatment when the law requires special kinds of unequal treatment. Nonetheless, defining equal treatment as “discrimination” does not make it the psychological or dignitary equivalent of differential treatment. In some respects claiming Laufer suffered the same harm from knowing there was a technical violation of a DOJ regulation that a young black person suffered when refused service in a diner is offensive. Defining equal treatment as discrimination does not make it so; indeed, one of the reasons Congress had to put in place standards that require special treatment for the disabled is that there is no historical precedent for equal treatment being actionable.

I don’t know how the Supreme Court will come down on these arguments, but there is an obvious way to preserve tester standing without supporting the current litigation industry based on testing. Simply hold, consistent with earlier precedent, that differential treatment causes a concrete and particularized harm to those who experience it. At the same time being exposed to some failure to satisfy the thousands of pages of technical regulations that define the inequality of treatment required to give those with disabilities equal opportunity only constitutes an injury to those who have a reason to care. Those who suffer from differential treatment suffer a concrete and particularized harm; those who merely see a violation of a highly technical regulation suffer no harm at all.

+++++++++++++++++++++++++++++++++++++++

¹  This very abbreviated explanation is bound to miss all the subtleties, but those interested can download all the briefs in the Acheson Hotels case from the Supreme Court’s website.