The Supreme Court is hearing a case this week that could do away with so-called “testers.”
Self-appointed people who investigate whether businesses are compliant with the Americans with Disabilities Act.
“If the Supreme Court narrows who can enforce the ADA,” Michelle Uzeta says. “There will be no ADA enforcement.”
The case may also change the way the government enforces civil rights laws across the board.
Today, On Point: The Supreme Court and enforcement of the Americans with Disabilities Act.
Read the court documents
- Acheson Hotels, LLC v. Laufer (filed by Acheson Hotels, defendant).
- Deborah Laufer’s Brief (plaintiff).
Guests
Michelle Uzeta, deputy legal director at the Disability Rights Education and Defense Fund. She’s an attorney who has specialized in civil rights law since 1993, with a particular emphasis on disability rights and fair housing litigation.
Also Featured
Deborah Laufer, a woman with multiple sclerosis who is an American with Disabilities Act tester.
Jonathan Urick, associate chief counsel at the U.S. Chamber of Commerce Litigation Center.
Transcript
Part I
MEGHNA CHAKRABARTI: This is On Point. I’m Meghna Chakrabarti. Today’s story is about some missing sentences from one website in Maine. And how those missing sentences could lead to the end of one of the most common means of enforcing one of America’s most historic civil rights laws.
It begins in 2006, with a woman named Deborah Laufer.
Laufer lives in Florida. And she used to work as a special security guard in places at high risk for robbery, such as bank branches. She was their first physical line of defense.
So that made her a woman with a keen attention to detail, an intolerance for injustice, and a quick willingness to act.
But on April 19, 2006, Laufer was at work, and something just felt wrong.
LAUFER: I could hear the AC blowing by my ear, and it was giving me a headache to the point where it was distracting me. And we were unarmed in a high-risk robbery position situation, so you have to be on point if you’re unarmed. And I never called out all the time I worked. So my boss knew it was pretty serious.
CHAKRABARTI: She went straight to the doctor’s office. Tests revealed nothing. A few weeks passed. And things got worse.
LAUFER: I woke up, and I couldn’t walk. My ex-boyfriend at the time had to carry me to the car and drive me to the hospital, and they did more tests, and I had my second MRI, and I had a spinal tap.
CHAKRABARTI: Laufer had to wait a few nervous days before she returned to a neurologist’s office for her results.
LAUFER: And I sat down and he said, “You have MS.”
CHAKRABARTI: Laufer had just turned 40.
Multiple sclerosis is a disease of the brain and central nervous system. Patients can suffer vision and hearing loss, pain, fatigue, and impaired coordination, loss of mobility.
There is no cure.
LAUFER: I cried for about a week straight. It changed everything.
CHAKRABARTI: Laufer lost more than her job due to the MS diagnosis. As the disease progressed, she lost her whole way of life.
LAUFER: I used to swim, used to do martial arts. All kinds of sports.
CHAKRABARTI: Laufer now has to use a walker or a wheelchair to move around.
And the mental health effects soon followed. She suffered a deep depression that kept her locked inside her house for years.
LAUFTER: Basically, my brain shut down, I shut down. I did not exist. I could not exist. I didn’t know who I was.
CHAKRABARTI: Twelve years after her diagnosis, all that finally changed.
In 2018, Laufer’s sister invited her on a summer trip to Maine. She loved to travel and agreed. It was time to get out of her house and take back her life.
First step, find a hotel in the state whose car license plates have proudly borne the slogan “Vacationland” for more than 90 years.
So she looked for the accessibility information on websites of hotels and B&Bs she was interested in.
LAUFER: And I couldn’t find one. They would say they had accessible rooms, but they wouldn’t say how they were accessible. How do I know if they’re going to be accessible for me in my wheelchair? It didn’t tell whether they had an elevator to take up to your room, whether there was a shower chair, it didn’t have any information.
CHAKRABARTI: Laufer says because of that, she couldn’t go on that Maine vacation and had to stay in Florida.
But if fate had dealt her a cruel hand with the MS diagnosis, this time, it lent her a helping hand. Because it turns out, Laufer’s daughter had a boyfriend. And he was an investigator for the Americans with Disabilities Act.
His job was to investigate whether places of public accommodation like restaurants, bars, theaters, stores and hotels are accessible to those with disabilities.
He told Laufer that what happened to her wasn’t just wrong — it was illegal.
LAUFER: That sparked me. I’m like, “Wait a minute. No. You don’t you don’t have the right to tell me that I’m not a person. You don’t have the right to tell these people.” They are a person. They’re breathing, living, they exist. That got me pissed off. And that’s when I came back to life.
CHAKRABARTI: And that was the moment when Laufer, the woman with a keen attention to detail, an intolerance for injustice, and a quick willingness to act, knew what she had to do.
Deborah Laufer became a self-appointed disability rights “tester.”
GEORGE H. W. BUSH: And now I sign legislation which takes a sledgehammer to another wall. (APPLAUSE)
CHAKRABARTI: On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act into law.
BUSH: And once again we rejoice as this barrier falls, proclaiming together, we will not accept, we will not excuse, we will not tolerate discrimination in America.
CHAKRABARTI: The landmark civil rights law prohibits discrimination on the basis of disability in employment, transportation, communications, state and federal programs, and public accommodations.
The law’s architects knew that the sprawling act would be difficult to enforce, as there are millions of businesses that serve the general public.
So they included specific language that says, quote:
“Any person who is being subjected to discrimination on the basis of disability may institute a civil action for preventative relief.”
That’s why informal compliance testing has often fallen to individual citizens with disabilities. They’re the self-appointed “testers,” like Deborah Laufer.
In addition, the Department of Justice has issued guidelines that require hotels to include room accessibility information on their websites.
So this is how we come all the way back to where we began today.
And those missing sentences on one hotel website that could lead to the end of one of the most common means of enforcing one of America’s historic civil rights laws.
Because tomorrow, the U.S. Supreme Court hears oral argument in a case that could limit or eliminate the use of “testers” in ADA enforcement.
And that case is called Acheson Hotels, LLC v. [Deborah] Laufer.
In 2020, Deborah Laufer tried again to go on that trip to Maine with her sister. She browsed the websites of several Maine hotels and B&Bs, including the site for the Coast Village Inn and Cottages.
LAUFER: I looked at their third-party websites. I looked at their personal homepage website and none of them showed any accessibility. They had nothing on there about it.
On September 24, 2020, Laufer filed suit against seven hotels in Maine, including the Coast Village Inn and Cottages.
She had been through the process before. Laufer has filed more than 600 previous cases as a tester. And in each case, Laufer says, her demands were small.
LAUFER: Simple fixes, a website takes like an afternoon to fix, you know, just sending information off to your third-party websites and that type of thing, just updating your information. That’s all.
CHAKRABARTI: She also says, in most of the civil cases she has filed, defendants responded positively.
LAUFER: Most of them corrected the mistakes. And said, “I’m sorry. I didn’t realize, let me get that corrected.” And then as soon as they were caught, they said, “Okay, no, that’s not who we want to be. We want to be this type of company. So they changed it.”
CHAKRABARTI: However, in September 2020, the owner of Coast Village Inn and Cottages responded very differently.
The Coast Village Inn was owned by Acheson Hotels, an LLC owned by Julianna Acheson.
We contacted Acheson’s attorney’s multiple times. They declined our request for interviews.
When the Supreme Court hears the case tomorrow, Acheson’s attorneys are expected to argue that as a “tester” who didn’t intend to actually stay at the hotel, Deborah Laufer has no standing.
They also point to Laufer’s 600-plus ADA lawsuits, as evidence of a “serial litigant,” not a genuinely harmed American.
Deborah Laufer completely rejects that argument.
LAUFER: A feeling like I’m not a person, like I don’t have the rights that everybody else has, that I’m not human. I’d say that’s harm.
CHAKRABARTI: In court briefs, Acheson’s attorneys make another, farther reaching argument. They say only the federal government can “prioritize” how to pursue “defendants who violate the law.”
KAREN HARNED: The Constitution requires that the Executive is the one that is supposed to enforce our nation’s laws. Full stop.
CHAKRABARTI: Karen Harned, executive director of the Center for Constitutional Responsibility, filed an amicus brief in this case. And she recently appeared in a Federalist Society webinar.
HARNED: By letting the citizens do it, you’re losing political accountability because just anybody can go sue to enforce and nobody has a way of stopping that. Right? If you don’t like what’s happening, you can vote somebody out, but you can’t vote away a lawsuit.
CHAKRABARTI: So this is one of the biggest reasons why advocates and policy makers well outside the disability community are also keenly focused on this case.
The Supreme Court, should it choose to do so in Acheson, could roll back the use of enforcement testers in everything from the broad swath of civil rights law on race, gender, and sexual orientation, all the way to environmental law.
HARNED: Clean Water Act and Clean Air Act also have private rights of action that people have used over the years. So, that is the case we make in our brief and it’ll be interesting to see if the court bites, but we will see.
CHAKRABARTI: Given the court’s current conservative tilt, Deborah Laufer worries about how the court might rule. She wonders how many more places are still not ADA compliant. How will they be found? Will they ever be accessible?
LAUFER: If the Supreme Court rules against us and says that testers have no right to test the websites. Then it’s all back to square one, and these people know that they can just do whatever they want with their websites without consequence. There’s no accountability, you know?
As for Acheson Hotels, LLC and the Coast Village Inn and Cottages, Julianna Acheson sold the establishment in late 2022. The Inn’s new owners announce on their website that the Inn is not yet ADA compliant but that they are in the “early stages of an implementation plan” to remove barriers for any disabled guest.
Meanwhile Julianna Acheson now owns a different place, the 1802 House Bed and Breakfast. Its website says that the B&B is “not able to provide accessible lodging since the establishment is listed on the National Register of Historic Places … [and that] completing accessible alterations would destroy the historical significance of the property.”
When we come back, we’ll look more deeply at the potential broader impact of the Acheson case. This is On Point.
Part II
CHAKRABARTI: Today we’re talking about the use of testers in enforcing the Americans with Disabilities Act and how those, that use of testers is coming before the United States Supreme Court in a major case tomorrow. Joining us now is Michelle Uzeta. She’s the Deputy Legal Director at the Disability Rights Education and Defense Fund and she joins us from Monrovia, California.
Michelle, welcome to On Point.
MICHELLE UZETA: Hi Meghna, nice to be here. So we heard the story of Deborah Laufer and her background about how she became a tester. I’m wondering if we can add to the context of our common knowledge here, which some, with some facts about the ADA itself. So first of all, Michelle, what exactly does the ADA require businesses of public accommodation, I want to specify that part, require them to do?
UZETA: I appreciate you asking that question because there is a lot of misunderstanding about what the ADA requires. The ADA is a carefully balanced law. It balances the rights of people with disabilities as well as the interests of businesses. So the act imposes only very modest obligations on businesses under the ADA, businesses must do a couple of things that I’ll highlight.
The 1st is to ensure that all newly constructed and altered facilities are accessible and usable by people with disabilities, meaning comply with accessibility standards when being constructed or altered. The 2nd is to remove existing barriers to accessibility, for example, installing grab bars in a bathroom or striping a disabled parking space in a parking lot.
The third way is to provide auxiliary aids and services to people who are deaf, hard of hearing, blind, or deaf-blind to ensure equal opportunity and effective communication. And then relevant to this case, the ADA requires that businesses modify policies and procedures where it’s necessary to afford goods and services to people with disabilities.
For example, allowing access to individuals who use service dogs or for places of lodging like the Acheson Hotel, her hotels, including accessibility information on a reservation system.
CHAKRABARTI: Okay. And that is the so-called reservation rule that the Justice Department has issued.
UZETA: Correct.
CHAKRABARTI: Saying that kind of information is required, not just on the direct websites of the business itself but also on third party reservation systems.
UZETA: What the ADA requires is that places of lodging provide information to those third-party websites. And here, when we say third party websites, we’re talking about Booking.com or Hotels.com, Expedia, those types of places. The ADA does not force or give a cause of action to someone if that third party website does not publish that information.
CHAKRABARTI: I see.
UZETA: Ms. Laufer was suing, my understanding is suing Acheson Hotels because she didn’t know whether Acheson Hotels had provided that information to the third-party websites. The third-party websites didn’t have any information, and to my knowledge Acheson Hotels has never confirmed or denied that they provided information about accessibility to those websites.
CHAKRABARTI: Okay, so just so that we’re clear, the ADA has these direct requirements for places of public accommodation, as you said. Then there’s this rule from the Department of Justice. Putting those two things together I guess the question is, how important are testers in the enforcement of the ADA?
Because Americans can also file complaints directly with the Justice Department. They don’t have to go to court, right? Why does the Justice Department, knowing that, in a brief that it filed with the Supreme Court, it said that testers are actually quite an important part of the overall enforcement scheme of the ADA?
UZETA: So the Department of Justice is the section of government charged with enforcement of the ADA and specifically the title of the ADA that applies to private businesses. But they aren’t the main enforcers. People in the community, private litigants, are the main enforcers. And this is exactly how Congress intended the law to work.
When the ADA was enacted back in 1990, it was specifically written to include a private right of action. So people with disabilities whose rights were violated could seek relief in court. So Congress knew that government was too under resourced to undertake meaningful enforcement efforts given the millions of businesses nationwide.
So made a conscious choice to make private enforcement the primary method of obtaining compliance. And as you noted, the United States has acknowledged that and their amicus brief in this case.
CHAKRABARTI: Okay. But, so how many complaints though do get filed directly to the Justice Department? Because in an ideal world, filing lawsuits in court is not the best way to resolve an issue.
That having the government directly be the enforcement arm for the people would be a better method. How many cases get filed or complaints get filed with the DOJ and what do they do with them?
UZETA: It’s hard to tell because the DOJ does not proactively publish that information. What I can tell you is that late last year we sent a Freedom of Information Act request to the DOJ seeking data on their Title III complaints.
And again, that’s the title that applies to private businesses. We’d asked for data going back over the last five years. And the department Responded in June of this year, reporting that they had received over 92,000 complaints. They could not, however, provide us with any details about the nature of those complaints.
For example, we weren’t told what percentage of those might have been against restaurants or hotels or retail stores, and nor could they tell us anything about the outcome of those complaints. So we have no idea how many of those were found to be on meritorious. How many of those may have been looked into?
How many of those may have been sent to mediation? If you go to the DOJ’s website, you’ll see that they have embarked on some enforcement efforts, but it’s not a drop in the bucket when you consider that they’ve received thousands and thousands of complaints.
So that’s a concern, both that there are so many complaints being filed and the department is relatively under resourced and that we can’t, we don’t have any access to information about what happens with the majority of these complaints.
CHAKRABARTI: Now within the justice department itself just to push on the capacity question, even if we knew what was in those complaints and what happened to them. Do you have information about whether or not you think the Justice Department would, is even capable of managing the volume of complaints that come in?
UZETA: I don’t think they are. And I base that on one thing that I’ve seen recently, which is this National Council on Disability Progress Report on Federal Enforcement of Disability Rights Law, which was published in 2019. That’s the most recent progress report, and that report revealed that there’s been a consistently declining budget at the DOJ, and a 24% drop in staffing for the civil rights division between 2010 and 2018.
Reducing budget levels, dropping staffing, that does not bode well for federal enforcement. It just seems that enforcement of disability rights is not a resource priority for the government at this time. And again, it makes sense because the government knows and acknowledges that private enforcement is the primary mechanism by which Title III should be enforced.
CHAKRABARTI: I see. The primary enforcement being the testers. Or any person. Any person, I should say.
UZETA: Any person. Correct. Any person injured, which includes testers.
CHAKRABARTI: Okay. And just to reiterate I mentioned it in the previous segment, but the language specifically in Title III of the ADA says any person who is being subjected to discrimination on the basis of disability may institute a civil action for preventative relief.
It’s right there. But I guess now, the question is, why do you think testers in particular are important or crucial even to enforce the ADA because, many of these testers, Deborah Laufer included, readily say that they’re testing websites or accommodations that they may never actually visit themselves.
So can you talk a little bit more about that?
UZETA: Sure, testers are important because people in the community who are experiencing discrimination often don’t have incentive to file suit or the time and the wherewithal to file suit. And ADA cases are stressful. They’re costly to bring when you’re suing a private business under the ADA.
There is no right to monetary damages. Attorney’s fees are not always guaranteed if they are recovered, they rarely cover the actual costs of litigation. ADA plaintiffs and their counsel are often villainized, as we’ve seen in the press, just the press surrounding this case. Their motives and their characters are consistently questioned.
And these issues exist despite the fact that nobody seriously disputes that the businesses being sued, including Acheson Hotels, are operating in actual violation of the law.
CHAKRABARTI: So I guess what I’m asking is, do you think ADA enforcement without testers would be possible in this country?
UZETA: I think that ADA, without ADA testers, ADA enforcement will go down significantly.
This article was originally published on WBUR.org.
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