The Case That Could Gut the Americans With Disabilities Act

This story was originally published by The 19th.

On Wednesday, the Supreme Court will hear arguments for Acheson Hotels LLC v. Laufer. The court will examine whether Deborah Laufer, a disabled advocate, can sue hotels for violating the Americans with Disabilities Act (ADA), despite having no intention to visit them. 

Civil rights advocates fear that the court has the potential to gut one of the main enforcement mechanisms of the ADA. They also fear that the court’s decision could have a more far-reaching impact on other civil rights law. 

“The current Supreme Court has not proven to be a champion of civil rights. There is concern about what could happen with this case, both with the ADA and in the broader context of civil rights enforcement,” said Michelle Uzeta, deputy legal director of the Disability Rights Education and Defense Fund. 

It is impossible to know for certain how the court will rule. Disability advocates had dire predictions in another recent Supreme Court case, Health and Hospital Corporation of Marion County v. Talevski. But the court ruled 7-2 in favor of preserving the ability of people with disabilities and their families to sue over problems with federally funded programs. 

“I think the big question is going to be how the court interprets harm here, how it slices and dices this,” said Jasmine Harris, a professor at University of Pennsylvania’s Harris School of Law. 

What is the case about?

Laufer is a disabled advocate living in Florida. She has multiple sclerosis, uses a wheelchair and has a vision impairment and limited use of her hands. According to court papers, Laufer has filed over 600 lawsuits across the United States, including the one under consideration in this case, saying businesses were violating the ADA.  

One of the primary enforcement mechanisms for the ADA is private lawsuits like Laufer’s. Industry groups have long argued that the lawsuits are excessively burdensome on small businesses. In an amicus brief, the US Chamber of Commerce and other industry groups described ADA lawsuits as “nothing to do with accessibility, but rather has become characterized by abusive lawsuits run by tester plaintiffs and their counsel who seek automatic attorneys’ fees. Small businesses are disproportionately harmed by these litigation tactics, and often settle lawsuits of even questionable merit to avoid litigation expenses and a judgment that would throw them into bankruptcy.”

An amicus brief is a court filing by a group that is not the plaintiff or the defendant, but who still have a strong interest in the issues of the case. 

Disability advocates disagree with this characterization of ADA lawsuits brought by testers.

“There’s this narrative that the person with a disability who can’t access the public accommodation is the villain in the story, as opposed to the business or public accommodation that did not comply with the civil rights law that’s been in place for over three decades,” said Shira Wakschlag, senior director of legal advocacy and general counsel for the Arc of the United States. The Arc advocates on behalf of people with intellectual and developmental disabilities and their families.

One company Laufer sued was Acheson Hotels, which owned the Coast Village Inn and Cottages in Maine. Laufer’s lawsuit alleges that the Coast Village Inn did not identify accessible rooms or provide enough information for her to determine if the hotel was accessible for her. The hotel moved to dismiss the case. They argued that Laufer hadn’t suffered an injury, since she had no intention of visiting the hotel. The trial judge agreed, saying she lacked “standing” — the right to sue by dint of being a directly impacted party. 

However, the U.S. Court of Appeals for the 1st Circuit reversed the judge’s decision. The judges ruled that the case was similar to Havens Realty Corp. v. Coleman, a 1982 Supreme Court case that allowed Black testers to sue for race discrimination in housing even though they were not looking for places to live. 

“The Supreme Court in that case said very clearly that testers have standing and are part of the civil rights framework necessary to enforce the civil rights statutes. The harm they experienced, even though they took it upon themselves and put themselves in harm’s way on purpose — that didn’t matter. They experienced discrimination when regardless of whether they wanted the apartments,” Harris said. 

In July, Laufer’s legal team petitioned the Supreme Court to dismiss the case as moot — no longer an active controversy. They cited the fact that her former lawyer, Tristan Gillespie, had been cited for misconduct. 

“Disability rights lawyers, as a litigation strategy, have been trying to keep cases out of this court for fear of narrowing civil rights through procedural rulings,” Harris said. 

But Adam Unikowsky, representing Acheson Hotels, argued that dismissing the case would be “extraordinarily unfair” and a “disaster to the rule of law.” Acheson Hotels and other industry groups would like to sharply curtail the number of ADA suits that can be brought against them, and this case may be their opportunity to do that. The 19th reached out to multiple industry groups, including the U.S. Chamber of Commerce and the biggest  hotel group, the Asian American Hotel Owners’ Association. All either declined or did not respond to requests for comment. 

The Supreme Court declined to dismiss the case in August. 

What is a civil rights tester? And what is standing? 

A civil rights tester is someone who works to uncover discrimination for the purpose of uncovering discrimination, rather than experiencing it in the normal course of their everyday life. 

In general, people are able to file lawsuits only if they have standing. 

Havens Realty established that a Black tester had standing to sue because she was allegedly treated differently than White testers, regardless of whether there was any intent to buy. Laufer and her legal representation argue that what she does is essentially identical to what the testers in Havens Realty did. 

The Department of Justice and the Equal Employment Opportunity Commission have some enforcement powers under the ADA, Wakschlag said, but no one agency is in charge and they are underfunded. It is not possible for the federal government to adequately pursue and enforce every complaint. 

“The reality of the law is that it mostly relies on private individuals to bring private enforcement,” Wakschlag said.  

Laufer and her legal team declined to comment for this piece. However, The 19th did speak with another independent civil rights tester, Yvette Pegues. Pegues is the CEO of Your Invisible Disability Group, which provides navigation services for newly disabled people and diversity, equity and inclusion consulting services for businesses. 

Pegues has a spinal cord injury and uses a wheelchair. She has been doing independent ADA civil rights testing for six years. Her decision stemmed from her struggle to go about her life in an often inaccessible world. 

“It really started out as a personal quest to allow myself to get access. It came from not being able to get into buildings, not being able to access common areas,” Pegues said. Eventually, she got tired of having to say “no” to events, gatherings with friends or outings with her children. But it wasn’t easy for her to make the change. 

“At first, there’s just so much shame and guilt about being in the way, about not feeling welcome in my wheelchair, of taking up too much room. And then finally, I realized that nothing can change until we change it,” she said. 

Do testers for the ADA get monetary damages? 

Under Title III of the ADA, it is not possible in most cases to sue for damages. A successful suit will involve injunctive relief — fixing whatever the problem is. Examples of injunctive relief include installing a ramp or a grab bar in the bathroom. The plaintiff’s legal fees can also be ordered to be paid in full by the defendant. 

Laufer’s own legal representation in other ADA cases represents one way this system can be abused. Her former lawyer Gillespie was suspended for six months for allegedly exaggerating the number of hours he worked on her cases, inflating the amount he was able to take from the defendants through legal fees. This is the same misconduct cited by Laufer’s current lawyer, Kelsi Brown Corkran, in their effort to have the Supreme Court case dismissed. It is unclear how common this issue is. 

Although it is largely impossible to receive damages under Title III of the ADA in most circumstances, individual states have their own versions of the law that do allow for it. For example, in California, the Unruh Civil Rights Act allows plaintiffs up to $4,000 in damages each time a plaintiff encounters a barrier to accessibility. California is also one of the leading states in terms of the number of Title III complaints made annually. 

Because Laufer’s team declined to comment, it is not possible to know if she has received any money on cases she brought. In Florida, where Laufer lives, plaintiffs are not generally able to collect damages.  

Laufer spoke with The Miami Herald about why she brings these cases. 

“I was getting slapped in the face every time I tried to book a room or do something. If I’m in position to be able to do something, I’m going to do something. People who run marathons are not the only ones staying in hotels, eating in restaurants and going to movies,” she told them in April. 

Pegues has filed considerably fewer legal complaints than Laufer; she estimates 15 or 20 over the past six years, either for herself or on behalf of others. 

“There’s a huge cost, emotionally and financially. It’s never my intention to go straight to legal action,” Pegues said. 

When asked whether she made money off of bringing legal complaints, she laughed. 

“Absolutely not. It’s more work than any financial gain. The only reason to take it to court is to enforce the law that already exists, because no one else is doing it,” she said. 

What will happen to the ADA if testers don’t have standing? 

Private action plays a major role in enforcing the ADA. Moves to limit private action will make the world smaller and less accessible for people with disabilities, according to advocates. 

“We need to understand that by the time a person with a disability attempts to patronize a noncompliant public accommodation, it is too late for a lawsuit to be of much use. If someone arrives at a hotel and it truly isn’t accessible for them, what are they supposed to do at that time? Are they supposed to scramble to find an ADA-compliant hotel? Are they supposed to sleep in their car?” said Marlene Sallo, executive director of the National Disability Rights Network. 

What will this mean for broader civil rights law? 

The Supreme Court’s ruling on standing could also impact other civil rights enforcement. The NAACP and nonprofit organizations for fair housing have also filed amicus briefs in the case. 

“At stake here with tester standing and related jurisprudence are the core tools that are essential to effectuate our civil rights laws. If the Supreme Court were to roll back that decision, it would be detrimental to the ability to address discrimination and segregation and their harmful impacts on protected classes across a range of statutes, protecting people with disabilities across public accommodations, but also dealing with civil rights statutes at their core in the housing and employment contexts,” said Morgan Williams, general counsel for the National Fair Housing Alliance, which advocates against racial and other forms of discrimination in housing. 

“This decision threatens to dismantle the investigative tools that are central to, that are essential for civil rights enforcement in the modern era,” he said.