Second Circuit roadmaps standing under the ADA

On June 2, 2022, the United States Court of Appeals for the Second Circuit rearticulated pleading requirements for allegations of discrimination under Title III of the Americans with Disabilities Act (ADA) in Calcano v Swarovski North America Ltd., No. 20-1552-cv (2d. Cir. June 2, 2022).

The decision is a reminder that plaintiffs seeking relief for an alleged ADA violation must establish the elements of standing at the pleading stage or risk dismissal of the claim.  The Court emphasized that allegations of discrimination under Title III must raise a “reasonable inference of injury” and avoid reliance on implausible “cookie cutter” assertions of standing. 

The Second Circuit’s decision comes after four visually impaired plaintiffs in New York filed 81 of over 200 virtually identical complaints against several retailers, alleging that the businesses discriminated against them by failing to provide Braille gift cards.  The United States District Court for the Southern District of New York (Woods, J.) dismissed five lawsuits for lack of standing and failure to state a cause of action. The Second Circuit affirmed. 

These “gift card” lawsuits follow thousands of ADA lawsuits in recent years, including an influx of cases against companies for hosting allegedly non-compliant websites.  Below we answer key questions related to defending claims under the ADA.

What are the threshold jurisdictional requirements for a plaintiff alleging a violation under the ADA?

According to the Second Circuit, “at all stages of litigation, the party invoking federal jurisdiction bears the burden of establishing all elements of Article III standing.”  A plaintiff must show that they suffered a concrete, particularized, and actual or imminent injury that was likely caused by the defendant and that the requested relief would redress that injury.  In the context of the ADA, a plaintiff must show that it is reasonable to infer, based on their prior visits to the defendant’s business and the proximity of plaintiff’s home to the defendant’s services, that plaintiff intended to return to the business. 

Accordingly, the central inquiry is whether a plaintiff alleges sufficient facts to show there was intent to return to defendant’s business based on prior visits and proximity of plaintiff’s home to the subject location.  Presented with five carbon copy complaints filled with “conclusory, boilerplate allegations,” the Second Circuit reasoned that it was not possible to determine whether there was any intent to return to defendants’ stores if Braille gift cards were offered.

What accommodations must retailers make?

Although the Second Circuit declined to assess the viability of the plaintiffs’ claims on the merits, the concurrence in Swarovski (Lohier, J.) offers guidance to help retailers assess ADA compliance.  According to Judge Lohier, gift cards are not simply goods – they are a means of access to both goods and services.  He noted that, despite this, the lack of Braille on gift cards does not necessarily constitute an ADA violation “since there may be other auxiliary aids and services available to assist blind individuals with using gift cards.”

Noting that the ADA allows defendants to provide auxiliary aids and services of their choice, Judge Lohier reasoned that the plaintiffs must adequately allege either (1) Braille was the only type of ADA-compliant auxiliary aid or service in the given context or (2) the defendants did not offer any auxiliary aid or service, including Braille.  Judge Lohier concluded that the four plaintiffs in Swarovski alleged neither.

What are the implications for public accommodations?

Plaintiffs in the Second Circuit now must plead with greater specificity the factual details of their ADA claims to demonstrate a plausible intent to return to a given public accommodation.  Unfortunately, however, the Second Circuit’s opinion does not preclude testers of ADA compliance from bringing claims against businesses that are attempting to comply, in good faith, with the requirements of the ADA.

Accordingly, to discourage the filing of ADA public accommodation claims, businesses are encouraged to ensure that they have alternative services or aids to assist patrons with disabilities.  In the gift card context, for example, businesses could require employees to read the contents and/or balances of the gift card to a visually-impaired individual.  Ultimately, businesses may continue to offer auxiliary aids and services of their choosing so long as the aid or service ensures effective communication about their products to individuals with disabilities.