Today, in Kreisler v. Second Avenue Diner Corp., the Second Circuit made new law regarding the rights of disabled persons to be free from discrimination in connection with their use and enjoyment of public facilities.
Plaintiff-Appellee Todd Kreisler is a wheelchair-bound man suffering from cerebral palsy, arthritis, and asthma. He passed by defendants’ restaurant (d/b/a Plaza Diner), located at 1066 Second Avenue in New York City, several times per week, but determined that, because the entrance has a step that is 7 or 8 inches high, he could not enter. He never tried to enter the diner, but claimed that he would attempt to do so if there were some indication that the diner is readily accessible. (Prior to this case, the diner had a small, portable, wooden ramp.) Plaintiff sued, seeking inunctive relief, compensatory damages, and attorneys’ fees.
The ADA provides, in part (at 42 U.S.C. § 12182), that:
No individual shall be discriminated against 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.
Defendant first argued that plaintiff lacked standing to challenge the diner’s wheelchair-inaccessible entrance and the ADA violations inside the diner, since he never attempted to enter the diner and never personally encountered the interior violations.
A plaintiff must prove, to satisfy constitutional standing requirements:
- injury in fact, which must be (a) concrete and particularized, and (b) actual or imminent;
- a causal connection between the injury and the defendantʹs conduct; and
- that the injury is likely to be redressed by a favorable decision.
Defendants argued that, even if the diner violates the ADA, plaintiff failed to establish an injury in fact.
In the context of the ADA, standing exists where
- the plaintiff alleged past injury under the ADA;
- it was reasonable to infer that the discriminatory treatment would continue; and
- it was reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendants’restaurants to plaintiff’s home, that plaintiff intended to return to the subject location.
Although plaintiff never attempted to enter the diner, he testified that “(1) the seven to eight‐inch step deterred him from attempting to enter, (2) he frequents diners in his neighborhood often, (3) he lives within several blocks of the Diner, and (4) he would like to frequent the Diner if he were able to access it.” These facts were sufficient, under the above test, to show a plausible intention to return to the diner.
The Second Circuit also adopted the Ninth Circuit’s position in holding that “deterrence constitutes an injury under the ADA.” Thus:
In the context of the ADA, the fact that the wheelchair‐inaccessible entrance deterred Kreisler from accessing the Diner established a concrete and particularized injury; Kreisler need not attempt to overcome an obvious barrier.
Therefore, plaintiff had standing to challenge the diner’s inaccessible entrance.
The court also broke “new ground” in addressing defendant’s argument that, even if plaintiff established standing regarding the diner’s entrance, “he failed to establish standing vis‐a‐vis the ADA violations inside the Diner he did not personally encounter.” On this point, the court agreed with the Eighth and Ninth Circuits’ position, namely, that:
once a plaintiff establishes standing with respect to one barrier in a place of public accommodation, that plaintiff may bring ADA challenges with respect to all other barriers on the premises that affect the plaintiff’s particular disability.
This rule, held the court, “comports with and furthers the purpose of the ADA, which … generally confers the right to be free from disability-based discrimination.” Specifically:
The ADA’s remedial scheme is not limited to orders for the removal of encountered barriers, but instead dictates that injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities. This rule is also consistent with the ADA’s ‘mandate that disabled individuals need not engage in a futile gesture if such a person has actual notice that the private entity does not intend to comply with ADA provisions. In short, Kreisler need not personally encounter each ADA violation within the Diner in order to seek its removal.
A contrary rule (for instance one that limited Kreisler’s standing to the Diner’s entrance) would undermine the ADA’s remedial purpose and impede Congress’s intent that the ADA serve as a clear and comprehensive national mandate to eliminate discrimination against disabled individuals. Moreover, such a rule would burden businesses and other places of accommodation with more ADA litigation, encourage piecemeal compliance with the ADA, and ultimately thwart the ADA’s remedial goals of eliminating widespread discrimination against the disabled and integrating the disabled into the mainstream of American life.
The court also agreed that constructing a permanent ramp was “readily achievable.” It is well-settled that “once a plaintiff articulates a plausible proposal for barrier removal, the costs of which, facially, do not clearly exceed its benefits, the burden shifts to the defendant to prove that the proposals were not readily achievable.” Here, plaintiff met his burden.