I know I am late with the blog entry this week, but I have an excuse. I had plenty of client matters that had to be attended to with some deadlines. So, have some time today, and here goes. Today’s blog entry is actually a twofer. We are going to discuss the concept of standing in cyberspace as well as some additional issues raised by ADA litigation against Uber. The cases raise some interesting issues. First, does a person actually have to download an app in order to have standing to sue the app’s owner for disability discrimination? Does an organization with employees who desire to use the app but cannot, have standing to sue because of the increased cost associated with the employees having to find alternative transportation? Is Uber a place of public accommodation? Is Uber a transportation entity? Does a person have standing to sue a website’s owner for disability discrimination when there is no possible way that the person could ever actually benefit from the services provided by that owner through the website? With respect to our second case, my colleague, Richard Hunt, has already blogged on it here, which is how I found out about it, and I commend readers to its reading. As usual, the blog entry is divided into categories and they are: Access Living of Metropolitan Chicago v. Uber Technologies Inc. facts; court’s reasoning on standing for all plaintiffs; court’s reasoning on the merits of suing Uber; Griffin v. Department of Labor Federal Credit Union; Griffin’s reasoning denying standing to plaintiff; takeaways Access Living; and takeaways Griffin. Of course, the reader is free to focus on any or all of the categories.

I

Access Living of Metropolitan Chicago V. Uber Technologies Inc. Facts

  1. The court describes the Uber app and notes that Uber has a specific app allowing users to request a wheelchair accessible vehicle.
  2. Uber controls all aspects of the rides. In particular: 1) it sets the requirements for the type and age of vehicles, conducts mandatory vehicle inspection, and help drivers arrange leases for Uber approved vehicles; 2) it regulates drivers by conducting background checks and setting requirements for drivers age, experience, licensing, and driving records; 3) it instructs the driver on the expected quality of the rides by issuing community guidelines, making recommendations about the amenities to stock in the vehicles and the radio station choice, and imposing cleanliness requirements; 4) it can deactivate drivers who break its rules; and 5) it sets the cost of the trip using a certain formula.
  3. Access Living of Metropolitan Chicago is an independent living center where 14% of its employees and 20% of its board members either use a motorized wheelchair or cannot transfer to a standard vehicle from manual wheelchairs. Independent living centers are organizations run by people with disabilities with the purpose of advocating for people with disabilities to ensure that the chances of a person with a disability living independently are maximize. Generally, they don’t offer legal services, but some, such as Access Living, do engage in legal representation.
  4. Uber is virtually unavailable to people using motorized wheelchairs in Chicago as it provided them with just 14 rides from September 2011 to August 2015. The lack of such accessible rides requires Access Living to incur increased costs in transporting its staff and board members requiring accessible rides.
  5. In August 2016, Access Living approached Uber about it. They showed Uber the app, which at the time had no available accessible vehicles, and asked it to provide motorized wheelchair users with services equivalent to those it offers others. Uber responded that it had no intention of providing equivalent response times.
  6. Three individual plaintiffs all work or volunteer at Access Living and all use a motorized wheelchair. None of them downloaded the Uber app because they believe that Uber does not provide equivalent service to people using motorized wheelchairs.
  7. Each of them found out differently about the lack of accessible services from Uber. Garcia heard from other motorized wheelchair users at Access Living that they could not use Uber because it did not have accessible vehicles, and he was shown the Uber app in September 2016, which at the time had just one accessible vehicle available in all of Chicago. Cooper once wanted to take an Uber ride to the mall but believed he could not because he had heard that Uber did not offer equivalent services to motorized wheelchair users. He figured that because he knew about an unsuccessful effort to pass an ordinance requiring equivalent service and that Uber lobbied to be free of such a requirement. He also saw the Uber app on someone else’s phone, which showed no available accessible vehicles. Patrick’s husband downloaded Uber to take advantage of a promotion but did not complete the registration because a colleague from the theater told him that Uber did not accommodate motorized wheelchair users.

II

Court’s Reasoning on Standing for All Plaintiffs

  1. Standing requires an injury in fact that is concrete and particularized and actual or imminent, not conjectural or hypothetical. Since injunctive relief is also required, a real and immediate threat of future ADA violations must exist as well.
  2. Deterrence can be an injury in fact.
  3. For deterrence to be sufficiently concrete and not speculative, the deterrence must be reasonable. Here, it is reasonable that Garcia’s and Cooper’s observations about the lack of accessible vehicles available on the Uber app combined with the fact they had heard about accessibility problem from others, caused them to refrain from using Uber’s services. Accordingly, that is sufficient to create a deterrence injury.
  4. Patrick’s claim gets thrown out because it was her husband that was aware of Uber’s alleged ADA violations and not her.
  5. Garcia and Cooper did not have to download the app and request the Uber ride in order to be injured. After all, they saw the app, learned of the lack of wheelchair accessible rides, and wanted to use the app in the future but reasonably believed they could not. They also alleged that Uber has no intention of making modifications, which Uber actually said. Accordingly, that is sufficient to establish the real and immediate threat of future violations to seek prospective injunctive relief.
  6. In a footnote, the court notes that the reason the plaintiff may not have downloaded the app was to avoid the activation of an arbitration agreement, but even so, that does not mean they weren’t injured.
  7. In another footnote, the court notes that the plaintiffs each allege they wanted to use Uber but did not downloaded the app because it does not provide equivalent services to people with motorized wheelchairs. The reasonable inference of that is that they would download the app and use it but for the alleged discrimination.
  8. Access Living alleges more than just an abstract injury to civil rights for those with disabilities. That is, the injury goes beyond an abstract injury because Access Living has to pay increased transportation costs for its employees who can’t use Uber because of discrimination.
  9. To show standing, you also have to show causation and redressability. Causation requires plaintiffs injury to be fairly traceable to the challenged action of the defendant and not the result of the independent action of some third-party before the court. Redressability means showing that a decision in the plaintiff’s favor is likely to redress their injuries.
  10. Uber’s policies or actions have a determinative or coercive effect on the driver’s choices. The allegations in the complaint suggest that Uber drivers are not independent of Uber and, as a result, their choices do not break the chain of causation that traces back to Uber. Therefore, an injunction against Uber directing it to use its control of the driver to get an adequate supply of wheelchair accessible rides is something likely to redress the injuries. Access Living’s allegations that it incurs increased cost to transport its employee due to Uber’s discrimination suggests that Access Living paid transportation costs before the discrimination occurred and that it did not take up the practice only to inflict injury on itself. So, Access Living’s alleged injuries are not completely its own fault.

III

Court’s Reasoning on the Merits of Suing Uber

  1. Access Living’s claim against Uber on the merits fails because title III of the ADA by its language requires a plaintiff to have been subjected to him or herself to discrimination on the basis of disability and Access Living had not alleged that it was subjected to discrimination by Uber. Instead, it alleges only that its injuries flowed from Uber’s discrimination against others. Title III of the ADA does not allow for a private cause of action from secondhand harm from discrimination.
  2. While it is true that title III of the ADA does allow for associational discrimination claims, Access Living did not allege that kind of discrimination.
  3. While title III of the ADA does not demand that people with disabilities achieve identical results or levels of achievement of persons without disabilities, it does demand that persons with disabilities are afforded equal opportunity to obtain the same result. That is, title III of the ADA does require entities to provide equal access to people with disabilities when reasonable.
  4. A place of public accommodation does not have to be a physical space. The court cited to the Carparts case as well as two cases from the Seventh Circuit strongly suggesting that a place of public accommodation need not be a physical space. While it is absolutely true, that the Seventh Circuit statements on the matter are dicta, it is clear that in at least one of those cases, the dicta was not a passing thought, but rather an explicit rejection of the principle that a public accommodation must be a physical site. Further, in a footnote the court notes that briefs filed in disability discrimination matters understand the Seventh Circuit to have picked the side of the split saying that a place of public accommodation does not have to be a physical space. See also this blog entry.
  5. In another footnote, the court says that it is not buying the argument that Uber does not operate a travel service because Uber’s control over its drivers would satisfy the definition of “operate,” in the dictionary.
  6. Uber’s argument that the ADA only applies to accessing goods and services and not to the content of the goods or services does not apply at the motion to dismiss stage because without accessible vehicles that can actually transport plaintiffs, they are shut out of the service and effectively turned away due to their disabilities.
  7. At this stage of the litigation, plaintiffs have sufficiently alleged that Uber is a transportation provider and it is the equal access to that service that Uber has blocked.
  8. It is certainly true that when it comes to reasonable accommodations, a request for reasonable accommodation should be made first. However, that isn’t necessary when an entity is already on notice about the need for modification, which is the case here. That is, Uber already knew that a reasonable modification was necessary to make its services accessible to plaintiffs and chose not to do so. In that case, requiring an express request from plaintiff serves no purpose. The meeting with Access Living was sufficient to put Uber on notice that people like plaintiff needed accessible vehicles and required a modification to access Uber’s services.
  9. It is at least plausible that more accessible vehicles can be made available through reasonable measures. It too early to say at the motion to dismiss stage what those reasonable measures may be, but it is at least reasonable to think that such measures do exist.
  10. Uber made no argument about claims that plaintiffs were discriminated against in ways other than by failing to make reasonable accommodations, such as by denying them the opportunity to participate in the services and to participate in the services with equal benefit and using discriminatory administrative methods. Accordingly, those claims survive.
  11. Uber is subject to 42 U.S.C. §12184 because the complaint alleges that it operates a travel service by arranging rides between passengers like and a fleet of drivers while it maintains control over the cost, the vehicle, the driver qualification, and the general ride experience for each trip. Accordingly, that means that Uber is primarily engaged in the business of transporting people.
  12. Nothing suggest that an entity has to own or leased vehicles in order to be subject to §12184.

 

IV

Griffin v. Department of Labor Federal Credit Union Facts

  1. Plaintiff is a person who is blind and uses a screen reader to access the Internet.
  2. The Department of Labor Federal Credit Union is a federal credit union that accept as members only those who share the common bond of being current and former employees of the Department of Labor and their immediate families and households. Only members can take advantage of the credit union’s products or services; only members may open an account or take out a loan or enjoying any way the benefit of the credit union. The credit union maintains a website describing his services and products.
  3. Plaintiff is not eligible for membership in the credit union. He does not work for the Department of Labor and never has. No one in his immediate family has ever worked for the Department of Labor, nor has any member of his household. No allegations are made in the complaint that he is legally permitted to make use of the credit union’s benefits.

V

Griffin’s Reasoning Denying Standing to Plaintiff

  1. The question before the court is whether a plaintiff barred by law from making use of defendant’s services may nevertheless sue under the ADA for a deficient website.
  2. To have standing, a plaintiff has to show an injury in fact, causation, and redressability.
  3. An injury in fact only exist if it is sufficiently concrete and particularized.
  4. If injunctive relief is involved, which it is here, an additional requirement for standing is there must be a real or immediate threat that the party will suffer an injury in the future (in architectural barrier cases, this is referred to as, “intent to return).”
  5. An injury is concrete when it is real and not abstract.
  6. A neutral proposition of federal law making it impossible for Griffin to interact directly with the credit union makes it impossible for the plaintiff to be personally subject to the dignitary harms occasioned by the website.
  7. Inability to obtain information sufficiently concrete to be an injury in fact occurs only when the information has some relevance to the litigant, which it does not here.
  8. The injury does not affect the plaintiff in a way that is individual. That is, there has to be some connection between the plaintiff and the defendant to differentiate the plaintiff so that his injury is not common to all members of the public. For example, anyone going to the zoo to see a particular animal does not have the right to sue a defendant whose actions have harmed that species in a particular part of the world. On the other hand, a person who, as a vocation, studies that animal in the part of the world in question plausibly does have enough of the connection to convert the general harm to the species into a particular harm to the plaintiff.
  9. The Federal Credit Union Act positively prohibits Griffin from taking advantage of any of the credit union’s products or services because he does not meet the membership criteria.
  10. The Menkowitz case, which we discussed here, doesn’t help the plaintiff because the doctor there actually had privileges with the hospital. That fact supplied the particularized connection allowing for standing.
  11. An injury should be certainly impending in order to serve as the basis for standing in a suit for injunctive relief. Here, it simply makes no sense that the plaintiff could intend to return to the credit union’s website because there was no hope of ever making use of its services.
  12. While the plaintiff may be a tester, standing still doesn’t work because why on earth would someone return to a website if they could not avail himself of the website’s services. That is, plaintiff’s role as a tester without more is insufficient to establish an intent to return.
  13. For a harm to be concrete and particularized, it has to be greater than a procedural violation divorced from any concrete harm. There simply cannot be an injury in fact where a plaintiff is not eligible to become a member of the credit union and has no plan to become eligible to be a member that credit union. Further, there is nothing the court could do to make the plaintiff eligible for the credit union.
  14. Deciding otherwise would allow any aggrieved person to challenge any allegedly deficient website belonging to anyone in the country. It would require the court to open the courthouse doors to abstract and hypothetical controversies in violation of Supreme Court precedent.
  15. A concurring opinion by Judge King was filed. In his view, the case could be dismissed on the intent to return grounds and it wasn’t necessary to visit everything else.

VI

Takeaways Access Living

  1. I wanted to put these two cases side-by-side because there is overlap between the two. The Seventh Circuit has not been very friendly to people with disabilities of late. So, considering Griffin, I would expect an appeal in the Uber case.
  2. I know Lyft has been subject to disability discrimination litigation as well, but from what I have read, they have not been as adversarial and have been more willing to work things out with respect to persons with disabilities. I also have not seen the cultural issues that are well-known with respect to Uber. When I travel, I do use a ridesharing app…
  3. I agree with the court in the Access Living case that the Seventh Circuit is very likely to hold explicitly that a place of public accommodation does not have to be a physical space.
  4. I find it very interesting the Access Living discussion of how Access Living has standing to bring a claim due to its increased costs that it incurred. Also, I find interesting that the court throws that claim out on the merits because of secondhand discrimination not flying. However, the court lets the world know that an association discrimination claim might fly in that eventuality. All of which create new opportunities for plaintiff lawyers.
  5. When dealing with ridesharing apps, §12184 is in play.
  6. Avoidance of an arbitration agreement does not affect the calculation of whether the injury itself occurred.

 

VII

Takeaways Griffin

  1. Much of the web is available for the taking to the public, though there are places such as credit unions and other kinds of websites that are membership specific. So, Griffin is really helpful to the website that are membership specific, but not to the rest of the Internet universe.
  2. The question isn’t whether the plaintiff is a member of that website, but whether the plaintiff could conceivably become a member of that website regardless of whether they are a tester or not.
  3. The court’s statement that a person who, as a vocation, studies animals in a part of the world having enough of a connection to the general harm to the species to turn it into a particular harm to the plaintiff in the context of cyberspace is mind blowing. That is, I know of academic institutions that have disability studies programs. I know also of academic institutions that study what goes on with respect to the Internet in depth. It is absolutely conceivable to me that an academician who studies screen readers and voice dictation technology and preferably needs to use one or the other or both because of a disability, would in the course of his or her duties come across all kinds of websites and software as a service products that are not accessible to persons with disabilities. Maybe I would even qualify under this standard. This particular language of the court is a huge opportunity for researchers in the academic and private sector to go after inaccessible websites. IMO, it wasn’t necessary for the court to bring up this example, and I would expect it to create problems.

One Response to Standing in Cyberspace and Other Issues

Great blog as usual Bill. What I found most puzzling about the Uber decision was the argument about reasonable modification/accommodation, which seems completely beside the point. If Uber is obligated to makes its services equally available to those with disabilities then there is no reason to think it must be asked to do so.
The underlying problem with ride-sharing apps is they sit right at the intersection of the individual right to discriminate, which the ADA preserves, and the obligation that public accommodations not discriminate. When a public accommodation offers its services solely through individuals who maintain a large degree of freedom about how and when they provide those services ADA compliance may simply be incompatible with the business model. It’s pretty clear the drafters of the ADA did not anticipate this kind of business and equally clear DOJ will never issue regulations that might provide some clarity.

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