Supreme Court to Take On Issue of Standing for ADA Title III “Testers”
Title III of the Americans with Disabilities Act (ADA) prohibits places of public accommodation, such as hotels, theaters, department stores, etc., from discriminating against individuals on the basis of disability. Title III requires these businesses to design their facilities and websites in compliance with ADA accessibility standards to make them accessible to the disabled – a laudable goal. In the past decade, however, that goal has been perverted into a money-making tool for a select group of attorneys and their clients.
Thousands of Title III lawsuits are filed each year against businesses big and small, most notably by serial plaintiffs each of whom typically file hundreds of lawsuits annually “testing” the accessibility of stores and websites. These plaintiffs are not actual customers, but rather self-appointed “testers” who visit thousands of stores and websites each year with no intention of actually patronizing the business. Instead, they are searching for ADA violations, many of which are unknown to the businesses and most of which are trivial, such as finding a toilet seat one-quarter further away from an adjacent wall than permitted by the ADA regulations. These testers then market these “violations” to an associated law firm to file a federal court lawsuit to force the business to comply with the ADA, without any effort to advise the business of the violations so they can be corrected – without resort to lawyers or the federal courts.
Why would a tester interested in ADA compliance rush to the courthouse instead of alerting a business to the violations and allowing a business to correct the ADA violations? Because their interest is not in compliance but in acting as a vehicle for recovery of attorney’s fees under the ADA by the tester’s associated law firm – a somewhat less laudable goal than that for which the ADA was originally enacted.
In recent years, however, businesses have fought back against testers, arguing that the testers have not suffered an actual injury since, having no intention of patronizing the business, they were not denied the access to the business which the ADA guarantees them. This concept of having suffered an actual injury is called “standing” and it is a requirement under Article III of the U.S. Constitution to file a federal lawsuit. Without standing, you have no right to file a lawsuit. Accordingly, the Second, Fifth, and Tenth Circuit Courts have all rejected tester standing.
However, the First and Eleventh Circuit Courts have concluded that the mere fact of an ADA violation is a sufficient injury in fact to confer standing on ADA testers, regardless of whether the tester intended to patronize the business. These Courts have relied on a novel theory of “informational injury” or “concrete intangible injury” to conclude that ADA testers have been harmed by the mere existence of the ADA violation. Acheson Hotels’ petition also claims that the Fourth, Sixth, and Seventh Circuits have likewise rejected standing for visually impaired ADA “testers.”
The issue boils down to this: should a disabled tester have a right to sue a hotel under Title III of the ADA because the hotel’s website, in violation of the ADA, failed to describe the features of the hotel which were accessible to disabled guests, if the tester never actually planned to visit that hotel as a guest?
This is the precise question presented to the Supreme Court in Laufer v. Acheson Hotels, LLC, which the Court recently accepted for review. In that case, Deborah Laufer, a particularly prolific tester, sued Acheson Hotels because its website lacked accessibility information and therefore violated the ADA. However, Laufer’s encounter with these violations flowed purely from her role as a “tester” – she never actually planned to visit the out-of-state hotel. Thus, the District Court dismissed her lawsuit for lack of standing. The First Circuit Court of Appeals reversed on appeal, holding that Laufer’s intent to patronize the hotel was irrelevant. The Supreme Court will decide whether Laufer’s status as a tester confers her with standing despite having no intention to patronize the defendant’s business.
The Laufer case should be of interest to any business with a brick-and-mortar presence or a website. A ruling in favor of Laufer could further expand an already rampant area of litigation surrounding Title III compliance. Alternatively, a denial of Laufer’s standing will likely provide some support for defending against ADA testers in the future. Many businesses have been hesitant to fight ADA tester lawsuits, due, at least in part, to the threat of an award of legal fees and the lack of clarity in the law. This all may change with a decision that favors the hotel. A decision in Laufer is expected in the Summer of 2024. Buchanan attorneys will continue to monitor this case and provide updates on the impact of this critical issue.