Standing to Sue Under Title Iii of the Ada

• Publication year: 1998
• Pages: 51

27 Colo.Law. 51 Colorado Lawyer 1998.

1998, March, Pg. 51. Standing to Sue Under Title III of the ADA

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51

Vol. 27, No. 3, Pg. 51

The Colorado Lawyer
March 1998
Vol. 27, No. 3 [Page 51]

Specialty Law Columns
Disability Law Column
Standing to Sue Under Title III of the ADA
by Amy F. Robertson

This article addresses the current state of the law of standing to sue under Title III of the Americans With Disabilities Act ("ADA"),1 with a focus on a recent decision in federal court in Colorado in which standing was found to exist.2

Background

Title III of the ADA prohibits discrimination on the basis of disability by public accommodations, and requires that goods and services made available to people with disabilities be equal to and integrated with those available to nondisabled people.3 This includes the requirement that stores restaurants, hotels, theaters, professional offices, and the like4 built for occupancy after January 1993 be accessible to people with disabilities5-for example, through the installation of wheelchair ramps-and that public accommodations built before that time be made accessible where doing so is "readily achievable."6

Under what circumstances does a person with a disability have standing to challenge discrimination by a public accommodation? For example, does a disabled shopper who cannot get into a store have standing under the ADA if he or she likes to shop in the area but does not have specific plans to shop in the inaccessible store? Has he or she suffered injury to a legally protected interest if there is another similar-but accessible-store in the same city? Does a patient have the right to challenge a physician's refusal to treat him or her because the patient was HIV-positive after he or she has sought treatment elsewhere? Under what circumstances can an individual with a hearing impairment challenge the refusal of a hospital to provide a sign language interpreter? What about "testers"-people who place themselves in a position to have their rights violated in order to bring suit to remedy those violations

As an initial matter, it is important to note that standing is raised only rarely in Title III cases in which a plaintiff has encountered discrimination while attempting to patronize a local store, restaurant, or theater. For example plaintiffs have challenged under Title III the seating configuration of stadiums7 and theaters;8 rules prohibiting guide dogs;9 the accessibility of restaurants,10 airports,11 and ski resorts;12 and the ability of a child with a disability to play13-and the ability of a parent with a disability to coach14-youth baseball without being required to demonstrate that they are likely to use the public accommodation in question again in the near future. These cases have all proceeded on their merits with no challenge to standing by either the defendant or the court-the latter significant because Article III standing is jurisdictional and may be raised sua sponte by the court.15

Federal and State Requirements for Standing

Because Title III of the ADA provides only for injunctive relief16-unless the Department of Justice gets involved, no damages are available17-in order to have standing under Article III of the U.S. Constitution, a plaintiff in federal court must satisfy the three-part test in Lujan v. Defenders of Wildlife ("Defenders"):

First, the plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized and (b) "actual or imminent, not 'conjectural' or 'hypothetical.'" Second, there must be a causal connection between the injury and the conduct complained of-the injury has to be "fairly . . . trace[able] to the challenged action of the defendant, and not . . . . th[e] result [of] the independent action of some third party not before the court." Third, it must be "likely," as opposed to merely "speculative," that the injury will be "redressed by a favorable decision."18

In Colorado state court, a plaintiff will have to satisfy State Board of Chiropractic Examiners v. Stjernholm, which requires "'convincing proof of threatened and impending wrongful action.'"19 Stjernholm also adopted by reference the test set forth by the U.S. Supreme Court in Los Angeles v. Lyons20-a case that preceded Defenders and on which Defenders relies for its requirement of an "actual or imminent" injury.21 Thus, the state standing test is very similar to that in federal court.

The enforcement provision of Title III also contains language that speaks to the standing question. A plaintiff may bring suit when he or she has been subjected to discrimination or "has reasonable grounds for believing that [he or she] is about to be subjected to discrimination in violation of" the provisions relating to new construction.22 This promotes efficiency by allowing disputes to be resolved at the design stage rather than waiting until construction is completed. In addition, a plaintiff is not required to "engage in a futile gesture if [he or she] has actual notice that a [public accommodation] does not intend to comply with" Title III.23 In the legislative history of the ADA, Congress noted that the "futile gesture" doctrine originated in the employment discrimination case of International Brotherhood of Teamsters v. United States, which held that

[w]hen a person's desire for a job is not translated into a formal application because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application.24

The Tenth Circuit has adopted this doctrine in the fair housing context as well.25

Because violations of Title III are generally alleged where a patron is unable to access the goods or services of a public accommodation, the question of standing generally focuses on the first prong of the Defenders test-which was the test enunciated in Lyons and adopted by the Colorado Supreme Court: whether the invasion of a legally protected interest is actual or imminent rather than conjectural or hypothetical. In other words, is the problem likely to recur fairly soon? To address standing in these situations, a court must first ascertain the nature of the legally protected interest at stake before inquiring whether that interest is in actual or imminent danger of being invaded.

Right to Patronize Without Discrimination

The Defenders court made it clear that "'[t]he . . . injury required by Art. III may exist solely by virtue of statutes creating legal rights, the invasion of which creates standing.'"26 Title III of the ADA creates an enforceable right to be free from discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.27 As such, the legal interest at stake in Title III cases is not the ability to purchase certain goods or enjoy certain services, but rather to do so without discrimination. This conclusion is supported by a line of standing cases in the discrimination context.

For example, in Heckler v. Mathews, an equal protection challenge to gender discrimination in Social Security benefits, the U.S. Supreme Court held that

the right to equal treatment guaranteed by the Constitution is not co-extensive with any substantive rights to the benefits denied the party discriminated against. Rather, as we have repeatedly emphasized, discrimination itself, by perpetuating "archaic and stereotypic notions" or by...