Supreme Court to resolve ADA 'tester' case

The Supreme Court of the United States is set to hear a case that may have a lasting impact on hoteliers and their guests. The case, Acheson Hotels v. Laufer, has been added to the docket for the 2023-24 term and likely will be heard in the fall, with a decision next year. 

In hearing the case, the court will decide whether a so-called civil rights “tester” can bring a lawsuit challenging a hotel’s failure to provide information about its accessibility under the Americans with Disabilities Act if the plaintiff never planned to visit that hotel. 

According to the website SCOTUSblog, the ADA requires that hotels “make information about their accessibility to people with disabilities available on reservation portals.” In 2020, Florida resident Deborah Laufer alleged that a website for The Coast Village Inn & Cottages in Wells, Maine, which is owned and operated by Acheson Hotels, did not contain enough information about the inn’s accessibility for people with disabilities. According to the writ of certiorari, Laufer, who has physical disabilities and vision impairments, has brought 600 lawsuits against hotels around the United States. In her declaration, Laufer said that as a “tester,” she visits hotel online reservation services to ascertain whether they are in compliance with the Americans with Disabilities Act. “In the event that they are not, I request that a law suit [sic] be filed to bring the website into compliance with the ADA so that I and other disabled persons can use it,” she wrote.

Laufer filed her complaint in a federal court in Maine but the district court dismissed the lawsuit on the grounds that Laufer did not actually plan to visit the hotel and therefore was not injured by the website’s lack of information. The U.S. Court of Appeals for the First Circuit later reinstated Laufer’s lawsuit, holding that “Laufer’s feelings of frustration, humiliation, and second-class citizenry” are “‘downstream consequences’ and ‘adverse effects’ of the informational injury she experienced.” 

Laufer’s attorneys, meanwhile, argued that the language of the ADA lets anyone who is disabled—and therefore subject to discrimination on that basis—sue if an entity has violated the law. They added that hotels “rarely comply with the ADA” and that only the “testers” regularly take steps to enforce accessibility. “Without civil rights advocates such as this plaintiff, there would be no enforcement of the ADA,” the lawyers wrote in part.

The Industry Responds

The American Hotel & Lodging Association, the Restaurant Law Center, the National Federation of Independent Business Small Business Legal Center and five AHLA partner state associations filed an amicus brief in support of Acheson Hotels. According to a statement from AHLA, circuit courts are “squarely divided” on whether tester litigants who have visited a hotel’s website have standing to sue under the Americans with Disabilities Act. “Until the Supreme Court reviews the case, the hotel and lodging industry is negatively impacted by the lack of clarity presented by the circuit split,” according to the statement. 

The brief itself noted that until the matter is settled, lodging industry professionals in circuits that recognize “tester” standing (currently two) “must litigate whether their reservation information is sufficient for hypothetical patrons with hypothetical accessibility needs.” 

“The Supreme Court’s decision to hear this case is welcome news for AHLA members,” AHLA President and CEO Chip Rogers said in the statement. “Acheson Hotels, LLC v. Laufer is all about frivolous lawsuits brought by litigants alleging harm by hotels they have no intention of ever visiting. The justices have a chance to put a stop to this abuse of our legal system, and we are hopeful they will make the right call. A favorable decision by the Supreme Court will limit litigation to only those cases with true merit and provide peace of mind to hoteliers, who now live in constant fear of drive-by and click-by lawsuits from serial ‘tester’ litigants seeking to make a quick buck off hardworking small business owners.”

A similar statement from AAHOA claimed that ADA "tester" cases have more than tripled since 2013 and now amount to more than 10,000 filings annually. “While AAHOA Members support the intent of the Americans With Disabilities Act and the right of individuals with disabilities to use and enjoy our properties, we stand against nuisance lawsuits that enrich attorneys who use litigation or threats to extract settlement payments,” AAHOA President and CEO Laura Lee Blake wrote on LinkedIn. “As small businesses, our hotels can't afford to counter drive-by lawsuits by self-appointed enforcers—instead, that money would be better spent on improving our properties to make them more accessible.”