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133

Supreme Court to consider whether Americans with Disabilities Act 'tester' can sue hotels for non-compliance with the law (www.cnn.com)

submitted 11 months ago by [email protected] to c/[email protected]

40 comments fedilink hide all child comments

The Supreme Court will consider the strength of the Americans with Disabilities Act on Wednesday when it hears a dispute over whether a self-appointed “tester” of the civil rights law has the right to sue hotels over alleged violations of its provisions.

How the justices rule could have a significant impact on the practical effectiveness of the landmark legislation, which aims to shield individuals with disabilities from discrimination in public accommodations and a host of other settings.

At the center of the dispute is Deborah Laufer, a disability rights advocate who has brought hundreds of lawsuits against hotels she says are not in compliance with ADA rules requiring hotels to disclose information about how accessible they are to individuals with disabilities.

Laufer, a Florida resident who uses a wheelchair and has a visual impairment, doesn’t intend to visit the hotels she’s suing. Instead, the complaints are made in an effort to force the hotels to update their websites to be in compliance with the law. Legal experts say the strategy, known as “testing,” is necessary to ensure enforcement of the historic law.

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[–] [email protected] 21 points 11 months ago (2 children)

Well, the supreme court recently decided on a case where the plaintiff had absolutely no standing. This was the case where the website developer didn't want to make a website for a gay couple, even though she had never developed a website before and there was no gay couple. So sure, this person can probably sue successfully. All rules are out the window at this point.

[–] [email protected] 5 points 11 months ago* (last edited 11 months ago) (1 children)

Are you implying that this case, where businesses are in clear violation of the ADA (aka "the law", and were undoubtedly approached and asked to correct this before it escalated to a law suit) has as little standing as, is as frivolous as, or is comparable in any way at all, to a case where a bigot literally made up shit to try and game the system to set a bigoted precedent?

[–] [email protected] 3 points 11 months ago (1 children)

Eh?

I'm saying you can now sue even if you're not disabled. Just go for it.

[–] [email protected] 2 points 11 months ago

No, don't, because frivolous law suits like the one you were comparing this to will only harm people making legit claims, who already have a hard enough time being taken seriously.

[–] [email protected] 1 points 11 months ago (1 children)

What case was this?

[–] [email protected] 2 points 11 months ago (1 children)

https://www.npr.org/2023/06/30/1182121291/colorado-supreme-court-same-sex-marriage-decision#:~:text=By%20a%206%2Dto%2D3,creating%20a%20message%20she%20opposes.

[–] [email protected] 1 points 11 months ago (1 children)

And where does it say she was not a web developer at the time?

[–] [email protected] 1 points 11 months ago* (last edited 11 months ago)

Ms. Smith, who has not begun the wedding business or posted the proposed statement for fear of running afoul of the law, sued to challenge it, saying it violated her rights to free speech and the free exercise of religion.

So she was previously selling "design" services, just not specifically for weddings.

[–] [email protected] 14 points 11 months ago* (last edited 11 months ago) (3 children)

Article has a point, it's the governments job to enforce this stuff, especially since the person is just checking random websites to see if they mention something, and immediately suing them if it's missing information...

If they're doing this to raise awareness, it's working, but I can't tell from the article if that's their goal or they're just trying to amass money from settlements.

I can't see the Supreme Court ruling in the plaintiffs favor

Edit:

Found another article with more info

https://19thnews.org/2023/10/supreme-court-acheson-laufer-americans-with-disabilities-act/

She claims to not make money on this, but at least for ones in Cali the plaintiff can get 4k for each one. So I'm not sure if she means "haven't made a profit" instead of "never received payouts". She filed over 600 of these all over the country, I doubt she hasn't done one in Cali.

Also, apparently the defendant has to pay legal fees for the plantif, and her old lawyer got caught "grossly exaggerating hours worked" so that might be the motivation if there was also kickbacks.

Especially with how many she does, I'd imagine her lawyer didn't need a lot of time to file these. It's possible the lawyer would overbill X hours and then give her a cut.

Definitely seems like there might be something shady happening, since we already know her lawyer was being shady.

[–] [email protected] 27 points 11 months ago (1 children)

they’re just trying to amass money from settlements

5-4 Pod covered this on the linked episode. The discussion of the case starts around 51:20. But, no, there's no money to made here. The testers identify non-compliance and then the hotel gets sued. That almost always means the hotel settles to become compliant; they just fix the problem.

They also address the idea of it being government's job to enforce to enforce the ADA? How? Where do the resources come from? There's no money to be made here because the business just fixes the problem. It's purely a drain on government resources to enforce the ADA. But if testers can't sue for non-compliance then the effectiveness of the ADA plummets: it basically becomes an unenforceable law.

Granted, these aren't legal arguments. They're based on the reality of what happens and will happen if testers can't sue, should the Supreme Court decide that.

[–] [email protected] 21 points 11 months ago (1 children)

There's a simple protection against this sort of trolling: Comply with the ADA.

[+] [email protected] -10 points 11 months ago (2 children)

She seems to go after tiny independent hotels, you know, the ones who barely have a website...

It's not like she's complaining about lack of ramps or actual accommodations, she's literally suing them over what their website doesn't say.

Seriously, this is a bit of a rabbit hole, and the more you read about it, the worse she looks.

[–] [email protected] 13 points 11 months ago* (last edited 11 months ago) (1 children)

Tiny independent hotels should still comply with the ADA. I'm not saying she's not a troll, but the means to defeat her is doing the bare minimum as required by law. In this case, the lawsuit was dropped and the decision rendered moot once the hotel updated their website to say that they don't offer ADA-compliant accomodations. And if she was filing nuisance suits, 32 different states have anti-SLAPP laws.

[–] [email protected] -5 points 11 months ago (1 children)

Tiny independent hotels should still comply with the ADA.

No one is saying they shouldn't...

[–] [email protected] 2 points 11 months ago (1 children)

You're not saying it directly no, you're just heavily implying it by context and omission.

[–] [email protected] -4 points 11 months ago (2 children)

Article has a point, it’s the governments job to enforce this stuff

[–] [email protected] 2 points 11 months ago

Yes! And it's the peoples job to make sure the government does it's fucking job! Is civics not taught anymore? How is this legitimately a hard concept to grasp.

[–] [email protected] 1 points 11 months ago* (last edited 11 months ago) (1 children)

And others replied: how? The government has an atrocious record of enforcing laws like this. For fuck's sake, we can barely get the various levels of government to enforce issues that are way more serious like workplace safety laws, wage theft, or food safety laws, despite there supposedly being an avenue to actually report these violations, and despite those violations carrying fines that should incentivize government enforcement. Do we really expect the federal government, with all of its deadlocks and stalemates, to fund a new office (or provide funding for an existing department) to accept complaints, process, investigate, and enforce ADA compliance?

Without an individual avenue to force compliance, the ADA will be rendered utterly feckless. At best the landscape for disabled people will fracture into yet another red-state/blue-state scenario where blue states are forced to craft and pass state-level mirrors of the ADA that includes a private avenue for enforcement (or funds enforcement at the state level), further complicating the legal landscape for regional/national companies who now have to comply with 20+ different laws instead of one. Meanwhile, red states will do nothing, leaving disabled people stuck without any realistic avenue to enforce compliance and address discrimination.

[–] [email protected] 0 points 11 months ago (1 children)

Without an individual avenue to force compliance, the ADA will be rendered utterly feckless

What?

I'm explicitly saying the ADA should be funded enough that paid government employees can do these checks...

You're saying because an individual can't immediately sue, that there's nothing for the ADA?

Like, do you think it just doesn't exist? Or they don't do anything till someone sues?

At first I thought maybe I did a bad job wording this, but after this many replies and me clarifying...

I don't think the issue is me champ.

It's just weird to see so many people arguing against government regulation and wanting stuff enforced primarily thru private lawsuits. And I wanted to understand why, but the novelty has worn off

[–] [email protected] 1 points 11 months ago

The point you seem to be missing is that the ADA currently has a relatively limited mechanism for direct government enforcement, because the current mechanisms were designed under the assumption that individuals could also sue to enforce the ADA. Most of the government agencies currently enforcing the ADA only produce guidelines and issue regulations, with relatively few lawsuits originating directly from the government. Enhancing the government's ability to enforce the ADA requires passing an amendment to the law through Congress to potentially create a new office with enforcement authority (or grant additional enforcement authority to an existing office), and to provide adequate funding so it can keep up with the additional workload. The odds of this amendment being passed on its own are infinitesimal; even if it passed the GOP-controlled House (who would almost certainly oppose it on principle, and even the reps who didn't oppose it would have far more important issues to spend political capital on), it would almost certainly be filibustered in the Senate, where it would die.

The only way it would possibly pass is if it was attached to a must-pass bill, such as one to address the debt limit or avoid another government shutdown. Even then, it'd be vulnerable to negotiations--it may be included initially, but underfunded or dropped entirely in order to accommodate other, more important goals. Even if by some miracle it did survive negotiations intact, it would then be a constant target for defunding or dissolvement by conservative legislators looking to deliver red meat to their base.

Yeah, in an ideal world, it would be nice if the government took care of enforcing the law. But this isn't an ideal world. Getting rid of individual enforcement trades a system that produces mostly desirable outcomes and ensures compliance with the law even when exploited by bad faith actors and replaces it with a system that is much slower due to the additional bureaucracy and the inevitable backlog piling up from underfunded and overworked agents, and is also vulnerable to the whims of a handful of extremists, placing the quality of life for millions of disabled people at risk.

That's why I say the ADA will be feckless without an individual avenue to force compliance: even if the government does take over all the enforcement work previously done by individuals, it'll be much slower, and the government will be strongly incentivized to focus on large, wide-ranging cases over smaller, individual violations, leaving them unaddressed for years (or even ignoring them outright so they don't get accused of being "hostile to small business")

[–] [email protected] 9 points 11 months ago (1 children)

Do tiny independent hotels not have to comply with ADA rules? Do they get exceptions for having a noncompliant website? Whatever her motives are doesn't matter, because what she's doing is good for society, the ADA, and helps keep business in check. The easy solution for these hotels is to just do things right up front and not put themselves in a position to get sued.

[–] [email protected] 2 points 11 months ago (1 children)

No, the easy solution is funding our government so they can hold businesses accountable...

Stop trying to privatize regulation, it pretty much never works out the way it should.

[–] [email protected] 8 points 11 months ago (1 children)

Both can exist. If there was a way to report the business to a government entity that then held the offenders liable, that would be ideal. Skip court, the business remedy the situation, the lady gets all of the changes complete. Either way, what she's doing is a good thing and this is the best avenue to get results, and it's working.

[–] [email protected] -1 points 11 months ago* (last edited 11 months ago)

This is quite literally why we have the rights we have. Stop trying to hand government all the power. We can have both but we need at least one means to actually be effective.

[+] [email protected] -8 points 11 months ago (2 children)

She is no better than a patent troll. Clogging up the legal system as a career. You shouldn't be able to bring an ADA suit unless you are actually inconvenienced by it. I see so many ADA issues in the world especially my neighborhood sidewalks. Can anyone bring random lawsuits or do I have to be in a wheelchair? The person in the article is not actually being inconvenienced why would I need to be.

[–] [email protected] 16 points 11 months ago (1 children)

And then no-one with a wheelchair will move into your neighborhood because it's so inaccessible and voila, you have successfully circumvented the ADA to keep those disabled people out of your neighborhood.

This is one way issues like systemic racism just stay entrenched.

[–] [email protected] 11 points 11 months ago (1 children)

I know this lady seems awful, but the concept of a "tester" extends to other issues where invalidating the concept basically allows the illegal behavior to exist unchecked.

Let's use the example of a bar that has a locally known, but unwritten, rule against allowing in black patrons. This isn't legal. But you can't really bring suit unless an unfamiliar black traveler tries to stumble into the bar, only to be told they're not allowed. Or someone who knows the unwritten rule exists can go to get denied, thereby providing actionable proof of discrimination for a lawsuit.

[+] [email protected] -10 points 11 months ago (2 children)

That's not what's happening here...

She doesn't go to these places, and she's not suing about actual accommodations.

She's suing every hotel who's website doesn't have a blurb about ADA. The big chains all have this, it's the small local hotels that haven't updated their websites since the 90s because most of their business is walk in.

[–] [email protected] 6 points 11 months ago (2 children)

That's not what's happening here...

Be careful with this reasoning. The Supreme Court decision will apply to all cases if testers, malicious or good faith. The specific case is relevant, obviously, but that's not all that should be considered.

[–] [email protected] 1 points 11 months ago

Yeah, but I get the feeling that the current Supreme Court is going to rule against the tester due to legal standing. I can easily see that tester cases require actual injury.

[–] [email protected] -3 points 11 months ago

Yeah, but jumping immediately to lawsuits isn't the best way to handle this.

The best way would be after a business is notified they have X amount of time to correct the issue. Then if they they don't, they're open to lawsuits.

The ADA gets enforced, and small business don't have to pay out an insane amount of lawyers fees because their website was missing a blurb

The only people "harmed" by that would be lawyers, especially the ones fraudulently billing hours in these cases. And any plaintiffs taking illegal kickbacks from their lawyers.

It seems pretty common sense to me, but what do I know? I'm just a disabled veteran who actually has to deal with this stuff.

[–] [email protected] 3 points 11 months ago (1 children)

I think this particular woman's actions are a waste of people's time and money, and are of dubious provenance to "solve" anything. That's not at all my point.

My point is that a ruling that eliminates "testers" for cases of discrimination, as she claims she is doing here, would have wide-ranging negative implications for civil rights laws throughout the country, not solely the ADA.

The best thing that could really happen here is that the SC moots the case because the websites have been updated - I tend to think that's the right outcome, since the "harm" was remedied.

[–] [email protected] -3 points 11 months ago* (last edited 11 months ago) (1 children)

But she's just going to keep suing others...

So why not madate that time to update their websites rather than clogging up the court system and changing them her lawyers fees?

Hell, even including a fine when they were notified would be better than the current situation. At least then the money would go to enforcing the ADA and not just her lawyers who she's either not vetting or ok with them breaking the law.

I don't think you're understanding how big the red flag is that her last lawyer got a six month suspension, and her current lawyer is fighting for their cases not to go to court.

It seems very likely she's getting kickbacks and found a new shady lawyer willing to keep it going.

The whole thing screams "abuse of the legal system".

[–] [email protected] 3 points 11 months ago* (last edited 11 months ago) (1 children)

Listen, I get that you don't like what this woman is doing. I really do. But the solution isn't to invalidate testers as a legal concept, that's what you're not getting. The solution is for Congress to amend the ADA to allow for some sort of curing mechanism on notice issues. Not for the Court to issue some overly broad ruling that invalidates the "tester" concept that's proven so crucial to proving racial and gender discrimination, which this plaintiff has built her case atop. Maybe there's a way for them to thread the needle to smack her down and keep that legal concept alive, but I'm not counting on it with this particular Court.

The nation, and you as a disabled vet who benefits from ADA protections, benefits more if she prevails or the case is mooted, than it and you would if the Court decides to undermine the legal concept of a tester. You have to think beyond your initial revulsion over her suing where you think an email would do, the ramifications are bigger than that.

In the meantime, sounds like you have an idea to needle your Senators and/or Congressman about updating the ADA. Seems like the rare bit of legislation where the business lobby might be onboard with helping the little guy instead of fighting it tooth and nail.

[–] [email protected] -2 points 11 months ago (1 children)

But the solution isn’t to invalidate testers as a legal concept, that’s what you’re not getting.

Maybe because I'm not saying that should happen?

I'm saying there needs to be a process (or at least a single step) between checking random websites and suing small businesses...

I don't know why people aren't getting that, but I get the feeling continuing to explain isn't going to help

[–] [email protected] 3 points 11 months ago* (last edited 11 months ago)

I don't think anyone disagrees that there should be an intermediate step.

That's just a problem for Congress to solve, not the Court. The Court is not going to add that step in (nor does it appear the Defendants have asked for that). Congress could end this woman's trail of lawsuits ~~tomorrow~~ as soon as the House picks a new Speaker.

What the Defendants are arguing is that because she had no intention of staying at the hotel, there is no harm. If you buy into that, then by the same principle, someone who inquires about an apartment to prove that a landlord is racially discriminating can have no standing because they weren't actually looking to move at that time. I know you probably don't see those as the same, but that's the concept the Defendants are arguing against.

[–] [email protected] 7 points 11 months ago

Get out your checkbook, hotels. Daddy Thomas needs a new yacht

[–] [email protected] 5 points 11 months ago

It's strange reading about this. Once upon a time when I did insurance for hotels and motels there was a disabled lawyer who would file claims for hotels being out of ADA compliance.

He would travel all over and stay at random hotels in their handicap accessible room and proceed to measure everything. Door frame widths, toilet heights, diameter of the handlebars in the shower, the exact angle of the zero entry showers, height difference between outside and inside of the door. Everything.

Then he would fax us these 50pg+ claims requesting compensation for everything that wasn't exactly in compliance. Usually this was after attempting to shakedown the owner/manager of the hotel. We would file the claim with the company and send the info to the agent telling them to talk with their client and get the compliance issues fixed.

After a while we started to also get claims where hotels would refuse him service because they knew who he was. The agents were warning their clients about him.

Far as I know the companies never paid a dime and just referred him to the ADA and denied the claims. They never said it outright but they would have preferred the hotels just binned the claims in lieu of filing them but understood why they didn't.