11 Dec Supreme Court Leaves Cedrtain ADA Claims Up in the Air
The Supreme Court issued a ruling in the case of Acheson Hotels, LLC v. Laufer as moot, leaving a crucial question unresolved regarding the standing of “testers” under Title III of the Americans with Disabilities Act (ADA). “Testers” are individuals who assess compliance with the ADA by visiting businesses or websites without any intention of utilizing the services. The case raised concerns about the potential for serial plaintiffs to target businesses across the nation, resulting in a Circuit split on whether “testers” have standing to sue for ADA violations. There are 12 Circuit Courts of Appeals in the U.S., with the circuits grouping states based on geography. One of the best ways to get a Supreme Court review of an issue is to demonstrate that one group of Circuits has ruled differently on an issue than another group of Circuits.
As a refresher, Title III of the ADA prohibits discrimination based on disability in places of public accommodation. It requires businesses and facilities open to the public (such as restaurants, hotels, theaters, and retail stores) provide equal access and reasonable accommodations to individuals with disabilities. This includes ensuring physical accessibility, communication accommodations, and making websites and digital content accessible.
In the case of testers, the First Circuit (upper northeast of the U.S.), the Eleventh Circuit (Southeastern U.S.), and, most importantly for Maryland businesses, the Fourth Circuit (which includes Maryland, Virginia, West Virginia, North Carolina, and South Carolina), have all ruled that testers have standing to sue in the federal courts in those locations. Normally, to bring a suit, a person must have sustained some sort of injury. In the context of Title III of the ADA, this normally means that someone with a disability was denied service or was unable to access a service as a result of a business not accommodating their disability. But a tester does not have to have actually suffered a denial of service or be unable to access a business. In the case the Supreme Court ruled on, the allegations that Laufer made were that hotels did not have on their websites information about obtaining accommodations for disabilities for their rooms.
So, what do testers get out of the suits if they have not suffered an injury and usually have no intention of using the services? They get a settlement and their attorney’s fees paid. In Laufer’s case, she brought more than 600 lawsuits, which may result in significant paydays.
By dismissing the case as moot because Laufer dismissed her lower court cases, the Supreme Court is leaving businesses and their lawyers hanging on the issue of whether a tester has standing to bring a suit to enforce the ADA. In Maryland, testers can bring suits, causing the risk of businesses to face lawsuits alleging that they don’t comply with the many facets of the ADA.
What does this mean for businesses in the First, Fourth, and Eleventh Circuits? Most observers believe that many more suits will be filed in those circuits to enforce ADA compliance. Most legal observers predict that many more suits are likely to be filed in those jurisdictions where testers have standing.
So I encourage businesses to take a look at their physical facilities to ensure they are compliant with the ADA (there are many exceptions for buildings, such as historical buildings). Also, take a look at your website and communications technology to ensure they are compliant. Finally, if you serve the public, you may have to be prepared to make accommodations, such as finding sign language interpreters for your customers.
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