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The Supreme Court looks at “testers” and the ADA

On Behalf of | Dec 11, 2023 | ADA |

One of the primary ways the Americans with Disabilities Act (ADA) is enforced is through private lawsuits – but is that practice actually abusive and burdensome on small businesses?

The Acheson Hotels, LLC v. Laufer case that’s recently been heard by the U.S. Supreme Court addresses this issue.

What’s the case about?

Deborah Laufer is a disabled advocate who has participated in more than 600 lawsuits regarding ADA violations, including the one central to the case before the court. At issue was the fact that the Coast Village Inn, which is part of Acheson Hotels, LLC, did not provide enough information on its website for Laufer to determine if any of the hotel’s rooms met her accessibility needs.

Laufer admits that she never intended to visit the hotel, and the case was initially dismissed because Laufer – who suffered no injury from the inn’s failure to comply – lacked standing to sue. The decision was reversed on appeal because the appellate court found her actions similar to “testers” in other civil rights claims involving racial discrimination.

Testers are people who look for discrimination with the goal of exposing it through civil rights claims, like an ADA lawsuit, even though they have not suffered any actual harm themselves. For example, a Black person and a White person may each approach a landlord about a rental for the sole purpose of determining if the landlord is discriminatory. If the Black tester experiences housing discrimination, they can sue the landlord even though they were not genuinely in the market for a place to live.

Critics, with justification, say the system is abused, especially in states like California where the Unruh Civil Rights Act allows up to $4,000 in damages every time plaintiffs find an accessibility barrier. It can also be abused by unscrupulous lawyers who inflate their legal fees – something for which Laufer’s own former attorney was suspended from practice.

Although Laufer has asked to withdraw her case, the defendant has asked the Supreme Court to issue a ruling on whether or not the plaintiff did have standing to bring her claim. If the Court rules that she did not, that could ultimately make it much harder for plaintiffs to sue businesses in the absence of actual harm.

That ruling is expected in 2024. If it goes the way the defense hopes, that could drastically change the ADA landscape for businesses everywhere.

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