Authored by: W. Webster Brown
Senior Associate Editor, American Journal of Trial Advocacy
Americans with Disabilities Act (ADA) is a civil rights law signed by President George H.W. Bush on July 26, 1990.[i] Title III of the ADA designates certain businesses as “public accommodations.” This designation requires that these businesses must eliminate barriers that impede access to their goods and services by persons with disabilities.[ii]Public accommodations such as hotels must ensure that guests who are blind, deaf-blind, or visually impaired have an equal opportunity to participate in and benefit from all of the goods and services provided by that hotel. Hotels can provide “Access” to disabled customers by a variety of means, including making reasonable modifications in policies and procedures to accommodate individuals with disabilities, removing architectural or structural communication barriers (such as conventional signage which cannot be read by persons who are blind or visually impaired and replacing them with signs that have braille) where it is readily achievable to do so, or providing auxiliary aids or services (such as reading a hotel bill to a guest who is blind) if it is not an undue burden and does not fundamentally alter the nature of the goods and services offered.[iii] Additionally, hotels are required to identify accessible features of their properties on their website and online reservation system.[iv] This includes a description of the hotel and hotel room physically accessible features on the hotel’s website.[v]
A recent case in the First Circuit discussed the issue of whether “website testers” who have no intention of staying at the hotel would nonetheless have standing to bring suit against the hotel for violating the ADA requirement of making information about the hotel’s accessibility available on any reservation portal to those with disabilities.[vi] In Laufer, Deborah Laufer, a disabled woman, brough suit against Acheson Hotels, LLC, who owns and operates the Coast Village Inn and Cottages in a small town on Maine’s southern coast.[vii] Laufer is a self-proclaimed ADA “tester” and advocate for disabled persons and has filed hundreds of other ADA-related suits in federal courts from coast to coast.[viii] Laufer alleges that when she first visited Acheson’s website to make a reservation at the Coat Village Inn, she found that it didn’t identify accessible rooms, didn’t provide an option for booking an accessible room, and didn’t give her sufficient information to determine whether the rooms and features of the Inn were accessible to her.[ix] Additionally, Laufer says she faced the same lack of information when she visited the Inn’s reservation service through thirteen other third-party websites, including Expedia.com, Hotels.com, and Booking.com.[x] However, Acheson argues that Laufer had no real intention of booking a room at its Inn, and therefore, Laufer lacks Article III standing to bring her suit, and the court accordingly lacks subject-matter jurisdiction over the case.[xi]
In order to have “standing,” the plaintiff must suffer an injury under the law. The First Circuit noted that it is crucial to understand that refusing information to someone who has a legal right to that information can be considered an injury under the law.[xii] The First Circuit also emphasized that it is the legal right to the information that matters, not what the user intends to do with the information.[xiii] Additionally, the court pointed to The Department of Justice’s “Reservation Rule,” which ensures that people with disabilities can “independently decide whether a hotel or guest room meets his or her accessibility needs.” This rule also says that accessibility information is needed to make sure people with disabilities can reserve hotel rooms in the same way as people who do not need accessible guest rooms.[xiv] The Court said Ms. Laufer’s “injury” was her feelings of frustration, humiliation, and being treated as a second-class citizen. She suffered because of the lack of accessibility information on Acheson’s website.[xv]
The First Circuit believed that the lack of information on room accessibility on the hotel’s reservation website doesdiscriminate against a person with a disability. The Court believed it was Ms. Laufer’s legal right to have accessibility information to know what accommodations were available at Acheson’s hotel. Therefore, Deborah Laufer had “standing” to bring an action against Acheson.
This decision is also worth noting because it furthers the split amongst circuit courts on whether website testers like Laufer have standing to bring ADA suits. The First Circuit’s decision joins the Eleventh Circuit[xvi] in saying that a website testers, who has no immediate plans to use a business, has standing to sue for a site’s alleged violations of the Americans with Disabilities Act. However, the Second Circuit[xvii], Fifth Circuit[xviii], and Tenth Circuit[xix] have all ruled that these website testers do not have standing to allege violations of the Americans with Disabilities Act.
[i] ADA@30: The Americans with Disabilities Act 1990-2020, https://www.eeoc.gov/ada30-americans-disabilities-act-1990-2020#:~:text=Signed%20into%20law%20in%201990,across%20community%20life%2C%20including%20employment. (last visited Dec. 9, 2022).
[iv] ADA Requires Hotels To Describe Accessibility Features On Website, https://ada.jmbm.com/ada-requires-hotels-to-describe-accessibility-features-on-website/. (last visited Dec. 9, 2022).
[vi] See Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022).
[vii] Id. at 263.
[viii] Id. at 265.
[ix] Id. at 263-64.
[x] Id. at 264.
[xi] Id. at 265.
[xii] Id. at 270.
[xiii] Id. at 270.
[xiv] Id. at 265.
[xv] Id. at 274-75.
[xvi] See Laufer v. Arpan LLC, 29 F.4th 1268 (11th Cir. 2022)
[xvii] See Harty v. W. Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022).
[xviii] See Laufer v. Mann Hosp., LLC., 996 F.3d 269 (5th Cir. 2021).
[xix] See Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022).