The Supreme Court on Wednesday will hear a case that could shape the future of the Americans With Disabilities Act.
The case originated when Deborah Laufer, who has multiple sclerosis and uses a wheelchair, filed a lawsuit in 2020 claiming that the Coast Village Inn and Cottages in Maine violated her rights under the Americans With Disabilities Act. Her case states that the hotel didn’t fulfill its legal obligations to provide information about the accessibility of its accommodations. That, the lawsuit argues, put the hotel out of compliance with the A.D.A.’s Reservations Rule, which requires hotels to post information about accessibility features, like the availability of larger bathrooms to accommodate a wheelchair, on their website.
The company that owned the hotel argues that Ms. Laufer, who lives in Florida, had no right to sue because she never intended to visit the hotel. She describes herself as an A.D.A. “tester,” and her lawsuit against the Coast Village Inn and Cottages is one of hundreds of such lawsuits she has filed against businesses, citing the act.
The question before the Supreme Court is whether Ms. Laufer has standing to bring this lawsuit. The American Civil Liberties Union and other civil rights organizations argue that she suffered discrimination that caused “dignitary harm.” Those groups point to a long history of “tester” plaintiffs defending civil rights, including Black plaintiffs who sued over racially discriminatory housing. On the other side, groups like the U.S. Chamber of Commerce, argue that the A.D.A. requires more direct harm, and that testers like Ms. Laufer disproportionately hurt small businesses through expensive lawsuits.
I am a lawyer. I also use a wheelchair after suffering a spinal cord injury eight years ago. Although I do not practice disability rights law, I have an intimate (and complicated) relationship with the A.D.A., and I remain conflicted, personally and professionally, in this case. On one hand, standing requires a concrete injury, something I’m not entirely convinced Ms. Laufer has suffered. Nevertheless, private lawsuits are currently necessaryfor people with disabilities to achieve equal access to businesses, public spaces and places of employment.
Too many U.S. media reports have vilified people who use the A.D.A. to enforce accessibility, or to recover settlements, referring to them as “crybabies” and calling their lawyers “unethical,” but the law is largely meant to be enforced by people with disabilities. The Justice Department itself says that private suits “are an essential complement” to the federal government’s enforcement of the A.D.A.
Society owes a great deal to disability rights advocates who fought for the enactment of the A.D.A., which opened up America’s public spaces and infrastructure to a swathe of the population that had long been denied access.
But more than 30 years later, my hope is that today’s hearing will provide an opportunity to revisit the law for the sake of benefiting the disability community and businesses alike. Too much of the burden of compliance is placed on disabled citizens filing lawsuits to gain access to businesses. This could be a moment to rethink the A.D.A.’s framework. The Justice Department could take a larger role in enforcing the law itself, and Congress could amend the statute to give businesses a window to correct violations.
Six months after I graduated from college, an accident left me largely paralyzed from the chest down. There is currently no cure for my injury — no amount of determination, willpower or physical therapy will fix it.
I do not view my wheelchair as a defining trait, although society reminds me of its presence daily. I became disabled later in life after 22 years of able-bodied naïveté — 22 years of not needing to consider whether a restaurant had stairs or if shopping aisles would be wide enough for me to wheel through.
Even at a higher-end hotels, I often arrive a day early, knowing that despite booking an “accessible” room online, I may not get one, or I may get a room meant for those with hearing impairments — where flashing lights provide a visual notification that someone is at the door, but there’s no guarantee of a bathroom door wide enough for me to enter with my wheelchair.
The disability community deserves better. And yet, I’m concerned that litigants filing repeat lawsuits have started to have the opposite effect, provoking ire from businesses and the broader society against those whom they view as money-hungry and litigious. Even federal judges have chastised A.D.A. testers, with lines such as “[Plaintiff’s] m.o. is clear: sue, settle, and move on to the next suit” and “the current ADA lawsuit binge is, therefore, essentially driven by economics — that is, the economics of attorney’s fees.”
Ad hoc enforcement of such an important federal law by private citizens against potentially endless technical violations leaves business owners uncertain of what they can be sued over. While the A.D.A., a federal law, does not allow plaintiffs to recover monetary damages, some states have enacted their own versions of the law that do allow for financial damages. A disproportionate share of A.D.A. lawsuits are filed in states, like California, that allow for such damages.
Some businesses have said that after paying the fees for a plaintiff’s attorney or settlement costs, they don’t have enough cash to fix the violations in their establishments.
So, how do we encourage A.D.A. compliance without burdening the disability community with the unenviable task of litigation?
Right now, federal enforcement is rare, for understandable reasons: Often, someone who has lived with a disability better understands the difference between an actual barrier and an inconvenience. But the Justice Department could work with A.D.A. consultants and people with disabilities to improve its own enforcement of the law.
I also think it is worth considering another, admittedly disputed, step. Instead of allowing people to sue upon encountering a violation, the A.D.A. could be modified to allow a “notice-and-cure” period, meaning someone affected by a violation would need to notify the business of the issue and give them an opportunity to fix it before filing a lawsuit. For years, disability rights organizations have lobbied against this, arguing that no other civil rights law permits businesses to discriminate without consequences until the victims provide notice. The Disability Rights Education and Defense Fund argues that such a reform encourages businesses to adopt, “a ‘wait and see’ attitude, doing nothing until they receive notice.”
But businesses are already adopting a wait-and-see approach. I can tell you that practically any business I visit will have a violation, whether big or small. I personally would be more willing to file notices to businesses than to commit the time and capacity needed to file multiple lawsuits, and I’m a lawyer who understands the ins and outs of litigation.
Yes, the A.D.A. has been around for decades and businesses should theoretically know their responsibilities, but we must acknowledge that compliance is difficult, and smaller businesses with fewer resources should have a fair chance to remedy their errors. Although I do not have all the answers regarding how a notice-and-cure period might work, if the Justice Department helped to provide a strong hand for enforcement after notice of noncompliance, I believe many businesses would rather fix their barriers than pay exorbitant attorney fees.
People with disabilities are already burdened enough. We are burdened with the task of enforcement of a federal statute that requires lengthy and expensive lawsuits without guarantee of remedy. We are burdened by the stigma of these lawsuits and the societal narrative that people with disabilities are always looking for a handout, despite the good work that some of these tester lawsuits may do.
Adding a notice-and-cure period to the A.D.A. and robust federal enforcement of the law would go a long way toward combating those burdens. We deserve the right of equal access without the stigma.
Ms. Clark is a lawyer in Washington, D.C.
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