Dismissal of ADA Website Tester's Lawsuit Affirmed

Suit dismissed because Tester could not prove concrete injury or harm


  • Website accessibility testers may not have standing to bring ADA accessibility claims without showing an actual or imminent personal and particularized injury. 
  • Become familiar with the DOJ’s March 2022 Guidance on Web Accessibility for businesses accommodating the public.
  • Work with your website developers and vendors to identify and address issues to ensure accessibility; and explore indemnification provisions for ADA website accessibility-related claims.
  • Include an accessibility policy and notice on your website.

On March 18, 2022, the Second Circuit Court of Appeals affirmed the dismissal of an accessibility lawsuit filed by an accommodations tester against a hotel owner. Plaintiff's suit, seeking monetary damages and injunctive relief, alleged the defendant hotel's website failed to include information in violation of regulations developed pursuant to the Americans with Disabilities Act (ADA). The ADA regulations at issue mandate lodging operators to adequately describe features through its reservations services to allow travelers requiring accommodations to make informed lodging decisions for travel. The tester acknowledged he was not arranging future travel and thus only reviewing in the capacity as a tester.

Defendant moved for dismissal, arguing Plaintiff failed to allege a real threat of imminent injury as a tester and therefore lacked standing. To establish standing, a plaintiff must prove (1) that he has an injury in fact; (2) that there is a casual connection between the injury and the defendant's conduct; and (3) that plaintiff's injury will be redressed by a favorable judicial decision. An injury in fact must be particularized, concrete and affect the plaintiff personally.

The U.S. District Court of the Southern District of New York granted dismissal and the Second Circuit affirmed, ruling that Plaintiff could not prove that his ability to travel was disrupted by alleged regulatory failures existing on Defendant's website. The court found Plaintiff's review of the website solely in the capacity as a tester foreclosed his ability to establish a particularized or personal injury.

The court followed the recent U.S. Supreme Court decision in TransUnion LLC v. Ramirez, which held a plaintiff must show harm beyond a mere statutory violation when suing for monetary damages. As the Supreme Court articulated, "Art III grants federal courts the authority to redress harms that defendants cause plaintiffs, not . . . to hold defendants accountable for all legal infractions."

A plaintiff could establish standing when seeking injunctive relief based on bare allegations of statutory violations, however Plaintiff's allegations of possibly using the website to book future travel were not sufficiently imminent to create an injury in fact entitling Plaintiff to injunctive relief.

Harty v. W. Point Realty, Inc., 28 F.4th 435 (U.S. 2d Cir. 2022)