Florida Woman Files “Tester” Suit(s)

Photo by Tim Mossholder, courtesy of unsplash.com

Like a vigilante watching over her city, Florida woman Deborah Laufer has taken civil law enforcement into her own hands.

Ms. Laufer, a Florida resident who suffers from multiple sclerosis and relies on either a wheelchair or cane to move around, is a self-proclaimed “tester plaintiff.”  Her weapon of choice?  Lawsuits!  Since 2018, Laufer has filed upwards of 600 lawsuits under Title III of the ADA.  In August of 2020, Laufer brought her battle to the Fourth Circuit when she filed suit against The Sleep Inn & Suites Downtown Inner Harbor (“Sleep Inn & Suites”) in Baltimore, Maryland.  Since then, Laufer has been busy, making headlines in Acheson Hotels v. Laufer, a case filed in the First Circuit by Laufer in September 2020 and recently decided by the Supreme Court of the United States in December 2023.

Americans with Disabilities Act of 1990: Hotels

Title III of the Americans with Disabilities Act (ADA), as amended in 2008, prohibits places of public accommodation, including private entities that are open to the general public, from discriminating against individuals with disabilities.  The ADA is meant to eliminate barriers to societal participation by creating a physical environment that is navigable by all, regardless of disability.  As applied to hotels, this means that hotel owners must first provide guest rooms that meet ADA accessibility guidelines.  ADA-compliant rooms require, for example, bathroom doors that are at least 32 inches wide, slip-resistant floors, grab bars on the walls adjacent to and behind toilets, roll-in showers, and at least 36 inches of clear passage beside beds.

In addition to meeting these accessibility guidelines, hotel owners must also ensure that individuals with disabilities are not subjected to different rules or restrictions than individuals without disabilities and have an equal opportunity to make reservations.  This means that individuals with disabilities should be able to contact the hotel, inquire about or search for both accessible rooms and availability, and make reservations within the same operating hours and by utilizing the same methods (e.g., telephone call or reservation website) as individuals without disabilities.

Hotel reservations are made in a variety of ways, one being through online travel websites (e.g., hotel-specific websites, booking.com, expedia.com, trip.com).  To be ADA compliant and ensure that everyone, regardless of disability, can reserve guest rooms in the same manner, reservation websites must identify and describe the accessibility features in guest rooms.

The Reservation Rule: Identification and Description Requirements

The “reservation rule,” which includes regulations issued pursuant to the ADA, requires that hotel reservation services, whether they be hotel-specific websites or online travel websites, “[i]dentify and describe accessible features [. . .] 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.”

The reservation rule is quite the vague general requirement, especially considering the wide range of disabilities and respective accessibility needs throughout society.  As a result, the Department of Justice (DOJ), the government entity responsible for enforcing the ADA, has recognized that it is nearly impossible for hotels to anticipate what information each individual with a disability will need to determine whether a guest room meets his or her accessibility needs.

To combat this issue of vagueness, the DOJ, and some federal courts, through case law, have provided some examples of more specific accessibility information that may be sufficient to meet ADA regulations.  For instance, in hotels that were built in compliance with 1991 ADA Standards, it may be sufficient to specify that the hotel is accessible pursuant to the ADA and provide the following: a description of the type of room, size and number of beds, type of bathing facility (e.g., roll-in shower), and communication features (e.g., alarms and visual notification devices).  In addition to this information, some hotels have also provided a hotline, so individuals with questions about accessibility can easily contact hotel employees and inquire.

In cases of older hotels that were built prior to 1991 and may have more limited accessibility features, the DOJ has mandated that, at a minimum, hotels should provide information about accessible entrances to the hotel, path of travel to guest check-in, and other essential services, and accessible routes to guest rooms.  More importantly, because these hotels were built before the implementation of the 1991 Standards, these hotels should provide information about the features of their hotel rooms that do not comply with the 1991 Standards.  This information could include the width of a bathroom door, whether there are benches in the showers, and the amount of passage space surrounding beds.  Even though these features do not comply with the 1991 Standards, the rooms may still be sufficient for some individuals with disabilities.

“Testing” Website Compliance

The ADA is primarily enforced through lawsuits and settlement agreements.  Within the last decade, individuals referred to as “tester plaintiffs,” have taken ADA enforcement quite seriously.  “Tester plaintiffs,” in the context of the ADA, are individuals with disabilities who have no intention of ever visiting the hotels or other locations listed on travel or hotel reservation websites.  Rather, these testers visit reservation websites for the specific purpose of determining whether the websites are compliant with the ADA.  If not, the testers file lawsuits for injunctive relief to force hotels into ADA compliance.

Take Deborah Laufer for example.  Laufer, a Florida woman who qualifies as a disabled person, holds herself out to be “an advocate of the rights of similarly situated disabled persons.”  As such, this Floridian crusader, albeit un-caped, has filed over 600 lawsuits with the goal of enforcing Title III of the ADA.  In Laufer v. Naranda Hotels, Laufer’s suit in the Fourth Circuit, Laufer visited third-party hotel reservation websites for the Sleep Inn & Suites in Baltimore, Maryland, on five separate occasions.  In August of 2020, after determining the website lacked the required accessibility information, Laufer filed suit in the United States District Court for the District of Maryland (“District Court of Maryland”) against Naranda Hotels, LLC (“Naranda”), the owner of the Sleep Inn & Suites.  Laufer alleges that she suffered an “informational injury.”  Put another way, because Naranda did not comply with website information requirements, Laufer argues she was deprived of information “required to make meaningful choices for travel.”

Tester plaintiffs, like Laufer, have become controversial because they have no intent to use the hotels’ services.  Instead, they “comb the web looking for non-compliant websites.”  In Laufer’s case, she made no indication that she planned to travel to or through the Baltimore area such that she needed to book a room at Naranda’s Sleep Inn & Suites.  In fact, she admitted that she visited the reservation websites solely to determine whether they met ADA requirements.

On one hand, tester plaintiffs like Laufer are seen as advocates, seeking to ensure compliance with laws that have already been passed.  This seems necessary as the ADA is notoriously and severely underenforced, making travel for individuals with disabilities “unpredictable at best and completely inaccessible at worst.”  As stated by Lucy Trieshmann, Former Fellow of the ACLU Disability Rights Program, “[u]nreliable accessibility makes it challenging or impossible for people with disabilities to travel independently; [individuals with disabilities] simply do not know what lies on the other side of the door . . . .”

On the other hand, tester plaintiffs are referred to as “serial plaintiffs,” “drive-by” plaintiffs, and even “trolls” because of the ever-increasing number of lawsuits and resulting litigation expenses that businesses face.  Further, website compliance issues could be fixed without the need for litigation if tester plaintiffs would contact businesses and inform them of the issues prior to filing suit.  Regardless of which side of the argument you fall on, Laufer’s tester case creates a potential conflict with Article III of the United States Constitution.  As Robin would say, holy constitutional conflict Batman!

U.S. Constitution: Standing to Sue

Under Article III of the Constitution, a plaintiff must have “standing” to bring suit.  The Supreme Court of the United States (“SCOTUS”) has specified that to have standing, a plaintiff must allege the following three elements: (1) she has suffered some “injury in fact,” (2) the injury can be “fairly trace[d] to the challenged action of the defendant, and not . . . the result of the independent action of some third party,” and (3) it must be likely “that the injury will be redressed by a favorable decision.”  SCOTUS has further defined “injury in fact” to mean an injury that is “actual or imminent, not merely conjectural or hypothetical.”  The question regarding Laufer’s tester case is whether she suffered more than a hypothetical, albeit informational, injury due to the website’s alleged lack of accessibility information when she had no plans to travel to the Baltimore area.

According to the District Court of Maryland, which dismissed Laufer’s case, Laufer lacked standing to sue.  No one said a hero’s work was easy.  Not to be stopped in her noble pursuit of ADA compliance, Laufer appealed her case to the United States Court of Appeals for the Fourth Circuit, which reversed the district court’s ruling.  The Fourth Circuit held that Laufer’s allegation of an informational injury accords her Article III standing to sue.  In support of its holding, the Fourth Circuit relied on several SCOTUS decisions, including Havens Realty Corp. v. Coleman (1982), Public Citizen v. United States Department of Justice (1989), and Federal Election Commission v. Akins (1998).

In Havens Realty, the issue was whether a plaintiff acting as a tester in a real estate case, had Article III standing to pursue a claim of discrimination under the Fair Housing Act of 1968 (“FHA”) when she had no intent to rent or purchase a home or apartment.  Havens Realty included two tester plaintiffs, Plaintiff Coleman, a Black woman, and Plaintiff Willis, a White man. Both plaintiffs asked Defendant Havens Realty (“Defendant”) on multiple occasions about the availability of certain apartments. On each occasion, Defendant told Plaintiff Coleman that no apartments were available but told Plaintiff Willis that there were several vacancies.  According to the Fourth Circuit’s interpretation, the Havens RealtyCourt held that a “plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly disclosed pursuant to a statute.”  After applying Havens Realty, the Fourth Circuit clarified that standing does not require Laufer to intend to visit the hotel or actually visit the hotel.  It is sufficient for purposes of standing that the hotel was required by statute to provide accessibility information, and by failing to do so, the statute violated Laufer’s legal right to that information.

On its face, the Fourth Circuit’s holding seems correct because Laufer was deprived of information “to which she has legal entitlement” according to the ADA.  In many cases, the law is late to the party.  Lawsuits do not ordinarily help people until after they have been harmed in some way or deprived of something.  It seems that enforcing ADA requirements before someone travels or plans to travel is a great way to ensure that disabled individuals do not suffer because a business fails to comply with the law.

While these arguments have gained additional support from the First and Eleventh Circuits, they seem somewhat inconsistent with both the goal of the ADA and the definition of “injury.”  First, Title III of the ADA is meant to guarantee equal opportunity for individuals with disabilities in places of public accommodation. Thus, it would seem that the goal of Title III of the ADA is to make an environment accessible to all those who choose to navigate it, not those who do not plan or want to navigate that environment.  Second, an injury implies damage of some sort.  It seems a hard argument that one is actually damaged when she does not receive information that she was never intending to use.  That information would be of no value to her.  Several other circuits, including the Second, Fifth, and Tenth Circuits, have sided with these arguments and rejected ADA tester cases on the basis that these plaintiffs have not suffered a “concrete and particularized injury in fact.”  Holy circuit split Batman!

For example, in Laufer v. Looper, a case filed by Laufer in the Tenth Circuit, the United States Court of Appeals for the Tenth Circuit specifically distinguished Havens Realty in concluding that Laufer lacked standing to sue as a tester plaintiff.  According to the Tenth Circuit, the FHA makes it unlawful for a business “to represent to any person because of race . . . that any dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.”  Observing that the FHA protects individuals from racial discrimination, and not “some amorphous interest in receiving unusable housing information,” the Tenth Circuit stated that Plaintiff Coleman had standing because Defendant Haven Realty decided, based on her race, to give Plaintiff Coleman false information about housing.  In contrast, Laufer did not have standing because Laufer did not allege that she had been given false information, nor did she allege that she had been denied information, based on her disability.  Rather, Laufer had access to the same information as all individuals, those with and without disabilities, who accessed the reservation website.

So, What Now?

Because of the circuit split, on March 27, 2023, SCOTUS agreed to decide the issue of ADA tester standing in another case brought by Laufer, Acheson Hotels v. Laufer, during the 2023-2024 term.  The case was decided on December 5, 2023; however, the Court did not decide the issue of standing.

In an unexpected twist, Laufer voluntarily dismissed all suits in lower courts, promised not to file any more tester suits, and asked SCOTUS to dismiss Acheson Hotels v. Laufer as moot.  In support of this request, Laufer argued that one of her lawyers committed serious misconduct, the hotel is currently under new ownership, and the hotel’s website had been updated with information regarding disability accommodations since Laufer’s filing of the suit in September 2020.

While acknowledging that the Court could have decided the issue of tester standing, Justice Amy Coney Barrett, writing for the majority, stated that dismissing the case as moot was the most prudent course.  Thus, the Court vacated the judgment and remanded the case to the United States Court of Appeals for the First Circuit with instructions to dismiss as moot.

Notably, Justice Clarence Thomas filed a concurring opinion expressing his views on the issue of tester standing.  In his concurring opinion, Justice Thomas, arguing that the ADA “does not create a right to information” but only prohibits discrimination based on disability, wrote that he would have vacated the judgment and remanded with instructions to dismiss for lack of standing.

Despite Justice Thomas’ concurring opinion, SCOTUS has left the issue of tester standing undecided.  Thus, the circuit split is still alive and well with no indication as to when this issue will come before the High Court again.  Until then, hotels—check your websites!