Supreme Court Shouldn’t Stop Testers Enforcing Disability Rights

For decades, American law has guaranteed that people with disabilities have equal access to businesses that serve the public or remedies when businesses don’t. But that could soon change, thanks to a case the US Supreme Court heard Oct. 4.

During oral argument in Acheson Hotels, LLC v. Laufer, several conservative justices raised doubts about a key enforcement mechanism of the Americans with Disabilities Act. At the same time, multiple justices suggested the case was moot, suggesting they could punt a decision on the merits issue.

The plaintiff in the case, Deborah Laufer, is a disabled woman who uses a wheelchair. She is also a civil rights tester. As a tester, she monitors the websites of hotels and motels to make sure they disclose accessibility information, as the ADA requires.

Laufer then sues places that violate the ADA, even though she is unlikely to visit the properties herself. To date, she has brought over 600 suits, including one against a hotel operator in the current case.

The Supreme Court may now decide whether she and other civil rights testers have “standing” to bring these cases—whether they have the legal right to get their cases heard in federal court.

If you think it’s unusual for one person to file hundreds of lawsuits against businesses that they are unlikely to visit, you’re right. But it’s the mechanism Congress picked to enforce the public accommodation protections of the ADA. Title III of the ADA, which covers public accommodations, largely outsources the enforcement to private parties like Laufer.

In so doing, Congress restricted the civil rights remedies available. Under the ADA, private parties in Title III suits generally aren’t eligible for money damages. Instead, they can only get injunctions—and attorneys’ fees—requiring public accommodations to fix violations.

These policy choices have led to vast underenforcement of Title III. Thirty-three years after the ADA was passed, thousands of hotels, shops, restaurants, and doctor’s offices are still difficult to impossible for people with disabilities to access.

By barring private parties like Laufer from recovering monetary damages, the ADA curbs the number of disabled people who have resources to bring these suits. And most lawyers eschew Title III cases. Without the prospect of a contingent recovery on damages, it’s hard for most plaintiff lawyers to make a living on attorneys’ fees alone.

In their briefing before the Supreme Court, the hotel operator and business allies gloss over hotels’ and businesses’ widespread noncompliance with the ADA. They also downplay the fact that Laufer receives no compensation for her work.

Instead, they malign Laufer, saying she has a “pathological” vendetta against businesses. But by all accounts, Laufer identifies real ADA violations that businesses then fix. Few businesses remove barriers until litigation forces them to do so. Private litigants give the ADA real teeth.

During oral argument, a few justices suggested that discrimination is less real because it happens on the internet. Justice Brett Kavanaugh wondered whether people “actually experience discrimination” from websites that lack accessibility information, and Justice Neil Gorsuch questioned whether “spending the afternoon clicking through these things” was enough to establish standing.

While it may sound trivial to people without mobility restrictions, inaccurate and incomplete information on hotel websites inflicts serious financial, logistical, and dignitary harms.

This is something Laufer has felt personally. When trying to plan trips, she frequently runs into reservation websites that provide no accessibility information that, as a wheelchair user, she needs to know before booking.

She’s not alone: As Justice Sonia Sotomayor pointed out, people with disabilities disproportionately rely on the internet and run into similar problems. Laufer has shown up at hotels that listed erroneous information on their websites, leaving her with no option but to sleep in her car.

Discriminatory denial of accommodations signal that Laufer has “inferior status in society,” as Laufer’s lawyer told the Supreme Court during oral argument. This dignitary harm, as Sotomayor observed, is analogous to a business putting up a sign that says, “No disabled person is welcome.”

In an ideal world, the thankless work of enforcing the ADA shouldn’t fall on a few unpaid people with disabilities who volunteer to be testers. Title III would allow for money damages and contingency fees, broadening the number and types of plaintiffs and lawyers involved in these suits, and the Department of Justice would bring more enforcement actions.

But, for better or worse, vigorous enforcement of this civil rights law depends on people like Laufer until Congress amends the ADA.

If the Supreme Court limits testers’ standing, it will immediately gut one of the few civil rights protections for tens of millions of Americans with disabilities who travel every year. That could come in Laufer’s case or a later one, if the court decides the issue is moot.

People with disabilities won’t be the only ones to feel the consequences. Civil rights testers have a long, and honorable history—from challenging “Whites only” waiting rooms, “men only” jobs, and “married only” housing.

Testers play a crucial role in enforcing a range of civil rights statutes guarding against discrimination based on race, sex, gender, sexual orientation, and other protected characteristics.

A ruling that Laufer lacks standing could call into question the constitutionality of using testers to smoke out unlawful discrimination in housing, employment, voting rights, education, and transportation.

While the process mandated by Title III is imperfect, it moves us closer to a society where all people are treated with equal status and opportunity. It may be naïve for us to expect this Supreme Court to expand rights for people with disabilities. But at a bare minimum, we should demand the court not take our rights away.

The case is Acheson Hotels, LLC v. Laufer, U.S., No. 22-429, oral argument 10/4/23.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Duncan Hosie is a writer and appellate lawyer who litigated disability rights cases at the ACLU.

Susan Mizner is director of ACLU’s Disability Rights Program, which she founded in 2012.

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