Can you sue a business for violations of the Americans with Disabilities Act even if you've never actually patronized it? Federal appellate circuits around the country have answered this question differently. To resolve this circuit split, the United States Supreme Court granted certiorari in the case of Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022). The case involves the question of whether or not a plaintiff has standing under the Americans with Disabilities Act ("ADA") to sue a hotel for failing to provide information regarding its accessible accommodations. The plaintiff – who never planned to stay at the hotel and never visited the property – claimed she had "standing," or the legal ability to file a lawsuit, because she qualified as someone who "tested" whether businesses around the country violated the ADA.
Deborah Laufer is a disabled person who lives in Florida. She is dependent upon a wheelchair or cane for independent movement, has limited use of her hands, and has a vision impairment. Defendant, Acheson Hotels, LLC ("Acheson"), operates the Coast Village Inn and Cottages ("Coast Village") on Maine's southern coast. Reservations for Coast Village can be made directly on its website or through various travel sites such as Expedia and Travelocity. Laufer visited Acheson's website and its affiliated third party websites and found that the website did not list any information about accessible rooms or facilities.
Laufer brought a claim against Acheson claiming that its website was in violation of the ADA. She claimed that her injury was caused by the frustration and humiliation she experienced in viewing a website without the required information regarding accessible accommodations. The district court granted summary judgment in favor of Acheson finding that Laufer lacked standing to bring the case. On appeal, the First Circuit Court of Appeals reversed, finding that Laufer had standing to bring her lawsuit. The case will now be heard by the United States Supreme Court.
The Americans With Disabilities Act
The ADA was enacted to address the fact that "many people with physical or mental disabilities have been precluded from participating in all aspects of society because of discrimination." 42 U.S.C. §12101(a)(1). In an effort to address this problem, the ADA provides 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… or operates a place of public accommodation." 42 U.S.C. § 12182(a). A business' failure to make accommodations for disabled persons "in policies, practices, or procedures, when such modifications are necessary" is liable under the ADA.
In addition, the ADA delegates authority to the Attorney General to promulgate certain regulations to carry out the provisions of the ADA. One such regulation addresses hotel reservations. Called the "Reservation Rule", this policy provides that "public accommodation operating a place of lodging must with respect to reservations made by any means… identify and describe accessible features in the hotels and guest rooms offered through its reservations service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs."28 C.F.R. § 36.302(e). Private individuals may sue for violations of the ADA.
Standing Requires a Case or Controversy
Article III of the United States Constitution allows federal courts to hear cases, but they must consist of a "case or controversy." A case or controversy is required to establish the standing of the plaintiff. To have established standing a plaintiff must show:
- They suffered an injury in fact. An "injury in fact" means the invasion of a legally protected interest that is concrete and particularized and actual or imminent, not conjectural or hypothetical." Amrhein v. eClinical Works, LLC, 954 F.3d 328 (1st Cir. 2020).
- Injury is "fairly traceable" to the challenged conduct of the Defendant, and
- It is likely to be redressed by a favorable judicial decision." Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
The heart of the "standing" inquiry is whether or not Laufer was injured by Acheson's website failure to provide information on disability accessibility accommodations.
Was Acheson's Failure to Provide Accessibility Information on Its Website Sufficient to Give Laufer Standing?
Acheson argued that Laufer had no standing because she suffered no injury in fact as she never intended to actually patronize the hotel. Further, Acheson argued that Laufer was a "tester" and opportunist who sought out businesses for ADA violations. Whatever accommodations were or were not offered, Laufer never would have used or needed them anyway.
While the district court agreed, the appellate court found favor with Laufer's position. It found that Laufer's injury did not need to be tangible, but rather could be intangible, to be determined on a case-by-case basis. Since the opinion will be heavily scrutinized at the Supreme Court, a brief summary of the First Circuit's opinion follows below.
The First Court found that irrespective of why Laufer perused Acheson's website, Laufer was still "injured" by the lack of accessible information on the site. In addition, the First Circuit agreed with Laufer that she suffered "frustration and humiliation" when the Acheson's website did not offer accessible information or options. It found favor with Laufer's argument that her feelings of frustration and humiliation were "downstream consequences and adverse effects" of the informational injury she experienced after visiting Acheson's reservation portal.
Going further, the First Circuit also agreed with Laufer that, despite her "tester status" Laufer could still allege standing, particularly in light of the ADA's "Reservation Rule." The purpose of the Reservation Rule is to require places of lodging to make accessible options readily available to disabled person who may want to make use of their offerings. In other words, "to reasonably permit (disabled persons) to asses independently whether a given hotel meets their accessibility needs." 28 C.F.R. §36.302(e)(1)(ii). Since Laufer was exercising her right under the statute and found Acheson in violation of the law, the First Circuit found that this was sufficient to establish an intangible injury and afford her standing. The fact that she did not intend to book a room did not impact her ability to establish standing because the denial of information to which a plaintiff has a legal right can constitute an injury in fact.
The First Circuit also agreed with Laufer that she was entitled to injunctive relief based on her "tester" status because even though she had no plans to visit the hotel in question here, she had plans to visit their website again as she operated " a sophisticated system to continue monitoring the non-compliant websites she encounters." Since Laufer intended to visit the site again to test for noncompliance, she could sufficiently argue that she had an imminent future injury.
Finally, the First Circuit agreed that Laufer's claim was not moot because even though Acheson revised its website to show that the property in Maine had ADA accessible lodging, it did not update its list on third party provider websites.
The First Circuit is not the only federal appellate circuit where ADA "tester" plaintiffs have been successful. In fact, just recently, a Ninth Circuit panel of judges reversed a lower court’s decision, finding that a California man’s litigation history cannot be used to question his credibility in regards to his ADA lawsuit over accessible parking at a lobster shop. Langer v. Kiser et al., 495 F. Supp.3d 904 (2023).
The Supreme Court of the United States has granted a petition for certiorari in this case meaning that it will review the First Circuit's opinion. The Supreme Court's decision (anticipated at some point in 2024) should provide some national clarity on the issue of whether testers such as Laufer may have standing to bring lawsuits like hers in the future. From a defense viewpoint, decisions like Laufer v. Acheson Hotels dangerously eliminate fundamental constitutional standing requirements which we will continue to combat on behalf of our clients.
The attorneys at WSHB are monitoring this case as well as its impact on pending ADA discrimination lawsuits and claims. Please do not hesitate to reach out to a member of our team should you have any questions or concerns regarding this topic.