When can you sue someone under the ADA because of their website?

The Court of Appeals has held that a plaintiff cannot sue a corporate entity under the Americans with Disabilities Act over its non-accessible website unless he can show he really intends to use the company's services.

The case is Harty v. West Point Realty, Inc., issued on March 18. I overlooked this case at the time but, hey, that's life. Under the Code of Federal Regulations, the websites for places of public accommodation (like hotels) must tell you how their places of lodging are compliant with the ADA such that disabled patrons will know if the hotel can accommodate their disabilities. What happened in this case was that plaintiff said the website for the Holiday Inn run by West Point Realty was not in compliance with the ADA. But Harty, who lives in Florida, does not allege he intended to actually stay at the hotel, in New York. Can Harty bring this lawsuit?

Harty cannot bring this lawsuit. He is a "tester," someone who tests places of public accommodation to see if they are ADA-compliant. (Sure enough, the SDNY docket system shows over 50 such cases). At most, he says that in the near future he intends to visit West Point Realty's website to test it for compliance with the CFR and possibly to use website to reserve a room at the Holiday Inn. That is not enough for a lawsuit, says the Court of Appeals (Sullivan, Calabresi and Parker).

Plaintiff needs standing to bring the case. That means he has to show there is a true case at stake, not a theoretical case. The mere existence of a statutory violation is not enough to confer standing; you have to show a current or past harm beyond the statutory violation. That's the rule in TransUnion v. Ramirez, 141 S. Ct. 2190 (2021), which the Second Circuit says alters the standing rules a bit for cases like this. Plaintiff has no concrete harm because he cannot allege that his ability to travel was hampered by the website; he has no plans to visit the area, and a beautiful area it is, I can tell you. Moreover, the fact that he alleges the website was discriminatory is not enough by itself to bring a lawsuit.