‘Tester’ case before Supreme Court raises fears of similar ADA suits

A case before the U.S. Supreme Court involving a “tester” plaintiff suing a hotel she did not intend to visit for disability discrimination is raising fears that many similar lawsuits could follow if the high court rules in her favor.

A pro-plaintiff ruling could also hit many companies that have online presences, experts say.

While the plaintiff attorney in the case — Acheson Hotels LLC v. Deborah Laufer — is optimistic of a favorable ruling, some employment attorneys believe the court will rule in the business’ favor.

The Supreme Court accepted the case in March, after the 1st U.S. Circuit Court of Appeals in Boston overturned a U.S. district court’s dismissal of it and held that Ms. Laufer had suffered “a concrete and particularized injury,” giving her standing to file suit under the Americans with Disabilities Act, even if she did not plan to visit The Coast Village Inn and Cottages in Wells, Maine. An argument date had not been set.

Courts are split over whether so-called testers can sue for disability discrimination. In addition to the 1st Circuit, the 11th U.S. Circuit Court of Appeals in Atlanta and the 4th U.S. Circuit Court of Appeals in Richmond, Virginia, ruled in Ms. Laufer’s favor in separate cases.

The 2nd U.S. Circuit Court of Appeals in New York, though, ruled against another plaintiff in a similar case, and the 5th U.S. Circuit Court of Appeals in New Orleans, the 10th U.S. Circuit Court of Appeals in Denver and the U.S. Court of Appeals, District of Columbia Circuit, have ruled against Ms. Laufer in other cases.  

The Supreme Court has previously ruled in favor of a tester on a related issue. In 1982, in Havens Realty Corp. v. Coleman, the high court ruled that a black tester investigating where he could rent an apartment had standing to sue.

“There’s a very good chance they will rule in favor of the hotels, whether by distinguishing this case from Havens or overturning it entirely,” said Kian Hudson, of counsel with Barnes and Thornburg LLP in Indianapolis.

The potential ramifications of the case are broad and extend beyond the disability discrimination context, he said. The question the court must resolve is whether plaintiffs can win damages over a technical violation of the law or if they need to show further harm.

“The Supreme Court has taken different views of what actual injury means in different contexts, so it’s difficult to know” how the court will decide the issue, said Steven J. Wells, a partner with Dorsey & Whitney LLP in Minneapolis. However, “it would take a fairly broad reading of the concept of standing to find for the plaintiff,” he said.

David Raizman, a partner with Ogletree Deakins Nash, Smoak & Stewart PLC, said, “It’s encouraging that the court is taking the case, and it may indicate that some of the justices may have some discomfort with a broad view of tester standing, but it would be foolish to make too many predictions at this stage.”

Corporate lawyers say a ruling in the tester’s favor would have wide implications.

Ruling in Ms. Laufer’s favor would “open the floodgates to lawsuits of every kind,” said Minh N. Vu, a partner with Seyfarth Shaw LLP in Washington, who said she expects the Supreme Court to reverse the 1st Circuit.

“This case has profound consequences for future issues that we’re going to be confronting in the digital era of the internet,” said Sarah Elizabeth Spencer, an attorney with Christensen & Jensen P.C. in Salt Lake City, noting the extent to which people access the internet for information and services. Ms. Spencer submitted an amicus brief supporting Acheson Hotels to the Supreme Court on behalf of the Chicago-based DRI Center for Law and Public Policy, an attorney group. 

“Had Laufer showed up at Acheson’s hotels as a tester with bags in hand asking about accessibility features, that’s very, very different,” Ms. Spencer said. This issue “is a slippery slope situation,” she said.

Ms. Laufer’s admission that she did not intend to go to the hotel means there was never going to be any likelihood of injury, said Sara H. Jodka, a member of Dickinson Wright LLP in Columbus, Ohio.  “Our courts are not designed for handling hypothetical disputes,” she said.

Martin H. Orlick, a partner with Jeffer, Mangels, Butler & Mitchell LLP in San Francisco, said he expects the Supreme Court “to require a higher burden” in these cases, with the plaintiff required “to have to come up with some concrete plans,” such as airline tickets, before being able to file a disability discrimination lawsuit.

Ms. Laufer’s attorney, Thomas B. Bacon, of Thomas B. Bacon P.A. in Orlando, Florida, said he is optimistic about the ruling. “The number of lawsuits out there is a direct result that everybody waits until they are sued” before rectifying cases of disability discrimination, he said.