The U.S. Court of Appeals for the Seventh Circuit recently held that a blind plaintiff lacked standing to sue under the Americans with Disabilities Act (ADA) for alleged accessibility problems with a credit union's website because he could not establish an injury in fact as a non-member.
A copy of the opinion is available at: Link to Opinion
Plaintiff, who is blind, sued a Credit Union, alleging that the Credit Union's website violated his rights under the ADA because it was not accessible to blind people. Specifically, Plaintiff claimed that the Credit Union's website discriminated against him on the basis of his disability and failed to make "reasonable modifications" to comply with the ADA in violation of 42 U.S.C. § 12812(a), (b). Plaintiff sought injunctive relief, court costs, and attorneys' fees.
Plaintiff uses a "screen reader," that reads text aloud to him to access otherwise inaccessible visual content online. However, a screen reader only works when websites support its software. Plaintiff alleged that the Credit Union's website did not support screen reader software.
Illinois has a Credit Union Act. The Credit Union is charted under the Act. The Act only requires that credit unions to open their membership to persons that share a "common bond." 205 ILCS 305/2(1). This common bond includes "[p]ersons belonging to a specific association, group or organization," "[p]ersons who reside in a reasonably compact and well-defined neighborhood or community," and "[p]ersons who have a common employer." The Credit Union membership is limited to certain local city and county employees. Only members may use the Credit Union's services.
Plaintiff is not a Credit Union member and is not eligible for membership. Instead, Plaintiff is a tester. He uses websites to test their compliance with the ADA.
The trial court granted the Credit Union's motion to dismiss on the grounds that the plaintiff lacked standing to sue. This appeal followed.
As you may recall, to establish standing, a "plaintiff must allege an injury in fact that is traceable to the defendant's conduct and redressable by a favorable judicial decision."
The Seventh Circuit observed that this appeal turned on the injury-in-fact requirement. Under, Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016), plaintiff must allege that he suffered an injury that is "both concrete and particularized." Plaintiff must also show that he faces a "real and immediate" threat of future injury because he seeks injunctive relief.
Plaintiff argues the trial court wrongly denied him standing on the grounds that he was a tester. The Seventh Circuit rejected this argument because although "tester status does not defeat standing, it does not automatically confer it either." Instead, like all plaintiffs, a "tester must still satisfy the elements of standing, including the injury-in-fact requirement."
Plaintiff also claimed he had standing to sue because the Credit Union caused him a dignitary harm. Although the Seventh Circuit acknowledged that a dignitary harm can be cognizable, it noted that "not all dignitary harms are sufficiently concrete to serve as injuries in fact."
Here, the Court held, any dignitary harm did not rise to the level of a concrete injury because Illinois "erected a neutral legal barrier to Plaintiff's use of the Credit Union's services." The fact that the Credit Union does not "accommodate the visually impaired" does not personally affect the Plaintiff, the Court held.
Put differently, the alleged harm is not particularized as it does not affect Plaintiff individually. And because Plaintiff cannot claim that if he visited the Credit Union's website again, he would be able to use the Credit Union's services even though he is not a member, he is not entitled to injunctive relief.
Finally, the Seventh Circuit examined Plaintiff's argument that the Credit Union's failure to make its website accessible to his screen reader caused him an informational harm that created standing to sue. The Seventh Circuit had little trouble rejecting this argument because an "informational injury" is not based solely on an inability to access information. Instead, "[a]n informational injury occurs when the defendant refuses to provide the plaintiff with information that a law — typically, a sunshine law — entitles him to obtain and review for some substantive purpose."
Here, Plaintiff complained about the ease of access, not a failure to disclose information that the law entitles him to receive so he may exercise his substantive rights. Moreover, the Court held, Plaintiff could have had a sighted person read him the information.
His complaint was that the Credit Union should have made it easier to access the information on its website for blind people, not that the website lacked information. Put differently, Plaintiff did not seek an order forcing the Credit Union to disclose information, rather he wanted the Credit Union to update its website to support screen reader software. The Seventh Circuit held that this is not an informational injury.
Thus, the Seventh Circuit affirmed the trial court order that Plaintiff lacked standing.
Ralph T. Wutscher
Maurice Wutscher LLP
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