In the course of one week in early August 2020, the Eighth Circuit Court of Appeals, which covers Iowa and other Midwestern states, struck a blow to so-called “drive by” discrimination lawsuits – and bolstered employers’ defenses thereto – by holding in three separate lawsuits that three different plaintiffs who alleged violations of the Americans with Disabilities Act (ADA) had no standing to pursue their claims. The term “drive by” refers to lawsuits typically filed against businesses open to the public by individuals who have never entered or attempted to enter onto the premises, but who claim to have nevertheless observed ADA violations. These rulings are the latest from the Eighth Circuit holding that plaintiffs filing discrimination or harassment lawsuits must prove an injury in fact in order to proceed with their claims. (See Court Reaffirms Employees Complaining about Sexual Harassment Must Prove They Were Actually Offended 7/15/2020)
Dalton v. JJSC Properties, LLC
The first decision, dated August 3, 2020, Dalton v. JJSC Properties, LLC, involved a plaintiff who pulled into a gas station parking lot to look up directions on his phone. While sitting there, he noticed the incline of the parking lot may not comply with the ADA. He filed suit, but the district court dismissed his claims. On appeal, the Eighth Circuit held the plaintiff had no standing because he had not suffered an actual injury. The plaintiff, who uses a wheelchair, admitted he had no intention of leaving his van when he pulled into the parking lot and no intention of ever going back there, so the court reiterated that “mere knowledge of barriers,” without an injury or likelihood of a future injury, does not create standing to sue.
Hillesheim v. O.J.’s Café, Inc.
Two days later, on August 5, the Eighth Circuit affirmed the dismissal of another plaintiff’s ADA claims involving a parking lot. In Hillesheim v. O.J.’s Café, Inc., the plaintiff, who also was confined to a wheelchair, sued a restaurant alleging the parking lot’s accessible spaces and access aisle did not meet ADA guidelines. Notably, the restaurant subsequently made improvements to the parking lot, but the plaintiff concluded there still were certain spots that did not comply, so the lawsuit continued. Following a bench trial, the district court concluded the plaintiff would not have to traverse the non-compliant areas of the parking lot in order to access the restaurant, and entered judgment for the defendant. On appeal, the Eighth Circuit agreed. Because the trial record established that the remaining non-compliant sections of the parking lot were outside the area where plaintiff would enter and exit the restaurant, plaintiff had not shown any risk of “ongoing or future harm,” and therefore had no standing,
Smith v. Bradley Pizza, Inc.
Finally, the Eighth Circuit came to a similar conclusion 5 days later, on August 10. In Smith v. Bradley Pizza, Inc., the plaintiff, again who was confined to a wheelchair, drove about 50 miles to Red Wing, Minnesota, where he took photographs from his car of architectural barriers at a Domino’s pizza restaurant he claimed would prevent him from entering the restaurant. He filed suit alleging various ADA violations, and later testified he had never been to the restaurant, that the only reason he drove to Red Wing was to “test the various businesses” there for ADA violations, that there are many Domino’s stores closer to him than the one in Red Wing and that he had no “specific plans” to visit Red Wing or that particular Domino’s in the foreseeable future. Truly the very definition of a “drive by plaintiff.” The district court dismissed the lawsuit and the Eighth Circuit affirmed, holding that the plaintiff established, at best, an intention to return to the Red Wing Domino’s “someday,” which is insufficient to establish an injury in fact.
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