Highlights:

• Evaluate the business risks associated with ADA non-compliance by considering financial repercussions and the private right of action.
• Analyze specific focus areas for civil rights testers, including websites, physical spaces, and employment processes, and plan measures to enhance compliance.
• Anticipate shifts in ADA enforcement mechanisms by reviewing legislative changes and state laws, and develop plans to maintain compliance

The Americans with Disabilities Act (ADA) protects individuals with disabilities from discrimination, both at places of public accommodation and in employment.

Civil rights testers, with and without the assistance of advocacy groups, will monitor the accessibility of businesses and employers and often file lawsuits under the ADA if they suspect something is inaccessible.

The U.S. Supreme Court recently heard an oral argument in the matter of Acheson Hotels, LLC v. Laufer, a case brought by a tester asserting that the hotel failed to comply with the ADA. This lawsuit is a reminder of the risks of failing to comply with the accessibility requirements of the ADA.
 

Here are some key points businesses should keep in mind.

Background

Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, which includes restaurants, hotels, gyms, schools and retail stores. This includes making places of public accommodation accessible to individuals with disabilities. Title I prohibits discrimination against any applicant or employee on the basis of disability during the application, hiring and termination processes, as well as in any terms and conditions of employment, and includes a requirement to provide reasonable accommodations.

Before the Court - Do Civil Rights Testers Have Standing?

The issue argued before the Supreme Court in Acheson Hotels involved standing – and whether a civil rights tester has standing to challenge the accessibility of the place of public accommodation even if the tester did not intend to utilize the company’s services.

Deborah Laufer, a disabled person who uses a wheelchair, is a civil rights tester. She monitors websites of hotels to confirm whether they properly disclose accessibility information in accordance with the requirements of the ADA.

If she believes that a website is not in compliance with the ADA, she will institute a lawsuit even if she is unlikely to visit the hotel herself. By current count, Ms. Laufer has filed over 600 such lawsuits. Damages sought in the suits include injunctive relief as well as attorneys’ fees.

Enforcement of Title III falls to the Justice Department, but the law also allows for a private right of action. The damages under Title III are limited, and therefore, in the absence of such lawsuits by testers, it is possible that many asserted violations would go unchallenged. (Some state laws provide for additional damages for such claims.)

Businesses have challenged these lawsuits, arguing that they are not trying to remedy a wrong. Instead, the companies argue, the lawsuits are more a means to obtain a financial recovery for the tester, as evidenced by the significant number of cases individual plaintiffs often file. The numbers reflect that the testers could not possibly have been trying to seek services at every business they have sued.

Businesses assert that engaging in a dialogue with the business owner would be more fruitful than litigation, particularly since lawsuits cost a significant amount of money to defend and, as such, often result in quick settlements at a fairly early stage.

Over the years, federal legislation has been introduced that would change the enforcement mechanisms for Title III claims, such as imposing a notice requirement of the violation before filing a complaint. None of those bills have passed. [1]

Some states have also imposed laws to limit such claims. For example, in California, statutory damages can be limited if a company fixes the violation or has its facilities inspected, fixing accessibility issues. [2]

The Acheson Hotels case reached the Supreme Court after the First Circuit Court of Appeals reversed the U.S. District Court of Maine’s dismissal of the lawsuit for lack of injury. The issue may not be decided by the court this term, however, because Laufer dismissed her case with prejudice and asserted that the issue of standing is now moot. [3] Regardless of the outcome, the case highlights the impact that such testers can have on businesses and the importance of being in compliance with ADA accessibility obligations.

Implications of Testers in Places of Public Accommodation

Businesses need to be aware that Laufer is not an anomaly. There are many civil rights testers who concentrate on the accessibility of places of public accommodation (including website accessibility) for individuals with disabilities.

While Laufer may have focused on the hotel industry, lawsuits throughout the country are filed on a daily basis challenging accessibility in other industries. There has been a significant upswing in recent years of website accessibility suits involving online retail stores and food services. [4] Brick-and-mortar places of public accommodation have long been a target of such lawsuits for physical accessibility challenges. Testers often look at ramp pitches, appropriate parking spots (both in terms of number and size), accessible restrooms, door opening width, and braille on signs, all of which are spelled out in detail in the ADA regulations.

Implications of Testers on Employers

The use of testers to ensure accessibility is not limited to places of public accommodation under Title III. Employers have also been sued by testers under Title I for accessibility challenges in the application process. In such circumstances, testers are not usually looking to get hired.

They are instead exploring whether the hiring process is appropriately accessible to individuals with disabilities, which may include testing the accessibility of electronic employment applications and the actual employment site. (Like Title III’s brick-and-mortar suits that involve door access, restrooms, and accessible conference rooms and offices.)

When asked, employers are required to provide reasonable accommodations during the hiring process. [5] Employers should consider including a reasonable accommodation statement as part of their application and should never ask an applicant if they have a disability or refuse to consider an applicant because they requested a reasonable accommodation.

Reasonable accommodations can include providing a sign language interpreter, offering the application in large print or braille, and making sure all interviews take place in an accessible space. If the application or interview process is not accessible, then a suit may follow.

What’s Next?

It will be interesting to see if the Supreme Court will rule on the standing issue and, if so, whether any controls will be placed on a civil rights tester’s ability to challenge businesses for asserted failures. Even if there are some limits put in place, it is anticipated that the practice will continue with modifications in how the suits are pursued in order to address any adverse ruling to testers.

As these types of lawsuits are not going away, it is important to ensure your business and hiring practices are ADA-compliant.

Notes

Authors’ Bios

	Heather R. Boshak is a Partner in Fox Rothschild’s labor and employment department. She advises employers on compliance with federal and state laws and regulations and represents businesses in employment litigation and dispute resolution.
	Kelly L. McNaughton is an Associate with Fox Rothschild and provides legal advice to companies of all sizes on workplace policy and litigation.

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