Originally published in IRMI’s Spring 2024 issue of Employment Practices Liability Consultant (EPLiC)
Article’s Key Takeaways:
- The US Supreme Court, in Acheson Hotels, LLC v. Laufer, declined to resolve a circuit split among federal courts over whether “tester plaintiffs”—individuals who sue businesses to enforce discrimination laws—have standing to bring Americans with Disabilities Act (ADA) claims against hotels and other businesses of public accommodation, despite having no intention to visit the business.
- The ongoing circuit split has implications beyond the public accommodations context and could affect the litigiousness of would-be ADA tester plaintiffs suing to enforce other ADA requirements, such as those in the employment application process.
- The risk that businesses will face tester plaintiff lawsuits will continue to vary regionally across the country.
- All businesses should ensure compliance with the ADA in both the employment and public accommodations contexts to mitigate the risk of tester plaintiff lawsuits.
The ADA’s Accessibility Requirements
The ADA prohibits businesses from discriminating against individuals with disabilities. To comply with the ADA, businesses are required to make themselves accessible to those with disabilities, which means they must provide reasonable accommodations to customers, employees, and prospective employees with disabilities unless doing so would impose an undue hardship on the business. This article focuses on two specific contexts: the employment application process and the hotel reservation process.
Employment Application Process
Private employers with 15 or more employees are subject to the ADA’s requirements, as enforced by the Equal Employment Opportunity Commission (EEOC). The prohibitions on disability discrimination apply to all aspects of employment. Still, one such area—the application process—is particularly susceptible to ADA tester plaintiffs (who are described below in further detail). Employers are prohibited from discriminating against individuals with disabilities in the application process, such as by publishing job postings that discourage individuals with disabilities from applying for the position.1 Accordingly, job postings must be written in a way that permits individuals with disabilities to understand how the position might be accessible to them, such as a description of the position’s essential functions, a description of the position’s work conditions and environments, and a statement exhibiting the employer’s commitment to providing reasonable accommodations to all qualified individuals.
Businesses of Public Accommodation and the Reservation Rule
Businesses that provide public accommodations (i.e., hotels, restaurants, and other businesses open to the public) have a legal obligation to make their services open and accessible to those with disabilities. Certain sectors must follow specific accessibility requirements tailored to their industry. For hotels and other places of lodging, the Department of Justice (DOJ) has adopted the “Reservation Rule,” which requires these businesses to “[i]dentify 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 [their] accessibility needs.”2 Put succinctly, the hotel must affirmatively provide accessibility information. This includes providing information on their websites, on third-party booking websites, by telephone, and in person. These businesses must also take other actions to ensure that individuals with disabilities can make reservations for accessible rooms, just the same as those who do not need accessible rooms.
Standing and Tester Plaintiffs
Private citizens who have been discriminated against due to their disability have the right to sue under the ADA to remedy the harm suffered. To bring a civil lawsuit in state or federal court, a plaintiff must have “standing” to sue under Article III of the US Constitution. Standing means that the plaintiffs themselves must have been harmed by the conduct or action for which they seek judicial relief. To have standing, a plaintiff must show they (1) suffered an injury in fact, (2) that is traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable judicial decision.3 In many cases, the individualized nature of the harm alleged by the plaintiff is apparent, and standing is not an issue.
However, a class of plaintiffs has divided federal courts across the country over the question of standing. These so-called tester plaintiffs are individuals who bring lawsuits against businesses to enforce noncompliance with the ADA and other antidiscrimination laws, often for mere technical violations, without necessarily having been harmed by the violation. Tester plaintiffs often seek settlement payouts from these businesses. These lawsuits impose significant burdens on businesses that, in many cases, may be unaware that they are out of compliance with the ADA or other laws.
The Circuit Split and the US Supreme Court’s Laufer Decision
One tester plaintiff, Deborah Laufer, “has singlehandedly generated a circuit split” on the question of tester plaintiff standing, specifically in the ADA context.4 Ms. Laufer, who personally has a disability, is a self-proclaimed ADA tester plaintiff who combs the Internet looking for hotel websites that fail to provide the requisite accessibility information. Ms. Laufer is interested solely in discovering ADA violations; she does not intend to visit these hotels. When she comes across a hotel website that fails to provide the required accessibility information, Ms. Laufer will sue, often settling her claims and receiving attorney’s fees as a payout. Ms. Laufer has spent significant time pursuing these claims, filing over 600 lawsuits against hotels across multiple jurisdictions within the past 5 years.
Ms. Laufer’s work has required courts to address the following question: Do ADA tester plaintiffs have standing to sue businesses for alleged ADA violations? The Second, Fifth, and Tenth Circuits have held that they do not have standing, while the First, Fourth, and Eleventh Circuits have held that they do have standing.5
In Acheson Hotels, LLC v. Laufer, the US Supreme Court had an opportunity to resolve this circuit split. In this case, Ms. Laufer sued Acheson Hotels, LLC (“Acheson Hotels”), the owner of the Coast Village Inn and Cottages in a small town in Maine, after discovering that the inn’s website and its third-party listings did not identify accessible rooms, did not provide an option for booking an accessible room, and did not provide enough information to determine whether the inn and its rooms would be accessible.
Ms. Laufer sued in the US District Court for the District of Maine for these alleged ADA violations, claiming that Acheson Hotels’ failure to provide accessibility information online caused her to suffer informational injury and dignitary and stigmatic harm. The district court held that she lacked standing and dismissed her complaint. The US Court of Appeals for the First Circuit reversed the district court and held that Ms. Laufer did have standing to sue. Acheson Hotels appealed to the Supreme Court. Then, after revelations regarding disciplinary action taken against one of her lawyers in a different case, Ms. Laufer dismissed her district court case and sought to dismiss the pending case in the Supreme Court as moot (meaning her claim is no longer a “live” legal controversy that needs to be resolved). The case was still fully briefed and argued on the merits.
On December 5, 2023, the Supreme Court, in a brief opinion, declined to resolve the circuit split. It held that Ms. Laufer’s claims were moot, declined to discuss whether Ms. Laufer had standing to sue, and vacated the judgment of the First Circuit. The Supreme Court provided little reasoning for its decision other than noting that the case was moot; thus, it did not need to address standing. It acknowledged, however, that it was “sensitive to Acheson’s concern about litigants manipulating the jurisdiction of the” Supreme Court by suing in a favorable jurisdiction and obtaining a favorable settlement against hotels, which would have little incentive to appeal to the Supreme Court knowing the plaintiff could successfully abandon the claim.6 All nine justices concurred in the judgment of the majority opinion, with Clarence Thomas, associate justice, and Ketanji Brown Jackson, associate justice, each filing separate opinions. Justice Jackson’s opinion focused on the concept of vacatur—which nullifies a judgment entered by a lower court—and did not address standing.
Justice Thomas, however, provided a comprehensive view of his position on the standing of Ms. Laufer and tester plaintiffs more broadly, taking the position that Ms. Laufer lacked standing for two main reasons: (1) the ADA only prohibits discrimination based on disability and does not create a right to information, but, even if it did, (2) Ms. Laufer’s claim does not assert a violation of her own rights because she has no intention to travel to Maine to visit the inn or even book a hotel room elsewhere in Maine. As Justice Thomas put it, “Acheson Hotels’ failure to provide accessibility information on its website is nothing to [Ms.] Laufer because she disclaimed any intent to visit the hotel.”7 Justice Thomas viewed Ms. Laufer’s actions as trying to “cast[] herself in the role of a private attorney general, surfing the web to ensure hotels’ compliance with the Reservation Rule.”8 According to Justice Thomas, this went far beyond what Congress intended for private plaintiffs under the ADA. Justice Thomas further suggested that Ms. Laufer’s procedural actions were evidence of strategic maneuvering by her rather than a true attempt to litigate this case until the end.
Thus, Justice Thomas was the only justice who made their position clear on tester plaintiff standing. Some justices provided hints of their position at oral arguments, but it would be too speculative to predict how the Supreme Court might rule in the future.
What Does this Decision Mean for Businesses?
In short, the Laufer decision keeps the status quo in place, meaning that tester plaintiffs will have standing to sue in some federal courts but not others. Businesses should expect this differentiation in law to remain for some time. The decision is also likely to embolden ADA tester plaintiffs in jurisdictions where courts have held that they have standing, so businesses should take notice that tester plaintiffs may continue to aggressively seek out ADA claims for the foreseeable future.
ADA tester standing is not limited to public accommodations cases, so the Laufer case also has significant implications in the employment context. Tester plaintiffs could attempt to enforce technical violations of ADA job posting requirements in a manner similar to Ms. Laufer, scouring postings for those that appear to be lacking accessibility information and suing the employer for an alleged ADA violation despite having no intention of working or applying for the employer. Accordingly, all businesses should be aware of the current state of the law on tester plaintiff standing.
The following states are located in federal circuits in which the courts have held that Ms. Laufer has standing: Maine, New Hampshire, Massachusetts, and Rhode Island (First Circuit); West Virginia, Virginia, Maryland, North Carolina, and South Carolina (Fourth Circuit); and Alabama, Georgia, and Florida (Eleventh Circuit). The status of the law in the First and Eleventh Circuits is unsettled because the Laufer decision vacated the First Circuit’s decision. Similarly, the Eleventh Circuit vacated its judgment on mootness grounds, but businesses within these jurisdictions should nevertheless be on notice of tester plaintiff lawsuits.
Businesses located in states within jurisdictions that have held that Ms. Laufer does not have standing are less likely to face litigation from tester plaintiffs. Still, they should nevertheless take steps to ensure ADA compliance. These states are located in federal circuits in which the courts have held that Ms. Laufer does not have standing: New York, Vermont, and Connecticut (Second Circuit); Texas, Louisiana, and Mississippi (Fifth Circuit); and Wyoming, Utah, Colorado, Kansas, Oklahoma, and New Mexico (Tenth Circuit).
What Steps Can Businesses Take To Mitigate Risk?
The easiest way to avoid this quagmire of ADA tester plaintiff standing is for all businesses to take affirmative steps to ensure compliance with the ADA.
What Can Employers Do To Address the Risks of Tester Plaintiffs?
- Ensure that all job postings include the following information to adequately inform individuals
with disabilities of how an otherwise unavailable position might be available to them.- A statement describing the essential functions of the position, including the basic job duties and physical requirements
- a. Essential functions must align with the key responsibilities of the job in practice and cannot include marginal duties that may be easily completed by someone in another role.
- A description of the work conditions and environments, such as the following
- a. Work location (i.e., office or outdoors)
- b. Hours and time required to be working (i.e., weekends, nights, or an on-call requirement)
- c. Exposures encountered during essential work activities, such as extreme temperatures or hazardous materials
- d. Travel requirements
- A reasonable accommodation statement stating that the employer is committed to providing an equal opportunity to all qualified individuals and will make every effort to provide reasonable accommodations as needed
- A statement describing the essential functions of the position, including the basic job duties and physical requirements
- Verify that third-party listing sites for job postings, such as Indeed.com, also include the
necessary accessibility information required for ADA compliance. - Review their contractual agreements with third-party listing sites and consider adding
indemnification clauses to recover any damages to the business arising out of the website
failing to provide sufficient accessibility information.
1 29 C.F.R. § 1630.4(a).
2 28 C.F.R. § 36.302(e)(1)(ii).
3 Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016).
4 Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 3 (2023).
5 See Harty v. W. Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022) (no standing); Laufer v. Mann
Hosp., LLC, 996 F.3d 269 (5th Cir. 2021) (no standing); Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022) (no standing); Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022) (standing) (vacated on mootness grounds); Laufer v. Naranda Hotels, LLC, 60 F.4th 156 (4th Cir. 2023) (standing); Laufer v. Arpan, LLC, 29 F.4th 1268 (11th Cir. 2022) (standing) (vacated on mootness grounds).
6 Id. at 5.
7 Id. at 12 (Thomas, J., concurring in the judgment).
8 Id.
Charles Bonani
Associate Attorney
Berenzweig Leonard
Mr. Bonani is an Associate Attorney at Berenzweig Leonard, where he works on a range of matters, including business litigation, government contracts, and employment law.
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