High court to weigh whether disability activists can sue hotels after online searches

When Deborah Laufer tried to plan a road trip after her multiple sclerosis diagnosis, she struggled to find information online about which hotels could accommodate her wheelchair. At times, she slept in her car after arriving at a hotel to find she could not access the property.

Laufer’s frustration navigating online reservations for personal travel inspired her to pursue test cases on behalf of the broader disabled community. She surfed the web to see which hotels included accessibility information required by law, and filed hundreds of disability discrimination lawsuits against hotels she never planned to visit.

Her lawyers and disability rights advocates say the work of testers such as Laufer, now before the Supreme Court, is necessary to enforce the Americans With Disabilities Act. They draw parallels to Black civil rights advocates who intentionally rode segregated buses to spark litigation or tried to rent apartments they did not intend to occupy to test whether they would be turned away because of race.

But lawyers for the hotels Laufer has sued disagree, saying that unlike the in-person work of civil rights advocates in decades past, Laufer was never directly interacting with the property owners she claimed were violating Justice Department rules implementing the ADA.

The question for the justices, who will hear oral arguments Wednesday, is whether Laufer’s type of online testing gives her standing — or the right to sue in federal court — if she does not intend to visit the properties she investigated.

The case, which involves a small hotel in Maine, could weaken ADA protections and have broader ramifications for the enforcement of other civil rights laws, legal experts say.

It was made somewhat more complicated this summer, when Laufer’s former attorney in Maryland hotel lawsuits was disciplined for improper conduct. After a court order, lawyers for the Maine hotel accused Laufer of participating in an “unethical extortionate scheme” — an allegation Laufer vigorously denies, but one that led in part to her request that the high court dismiss her case.

Even the Biden administration has not fully embraced either side. The solicitor general, while trying to preserve the right of testers to bring lawsuits to enforce the ADA, says Laufer does not have standing to sue because she merely viewed the hotel website without making a reservation.

For decades, Laufer was always on the go. Roller blading to the grocery store; running in the park with her daughter; performing martial arts and walking the beat as a private security guard. Her life changed dramatically the day before she turned 40, when she was diagnosed with multiple sclerosis. Seventeen years later, Laufer no longer takes more than a few steps without a walker, has limited vision and often uses a wheelchair.

She began filing ADA lawsuits over the lack of accessibility information on hotel websites in 2018, saying the hotels were practicing discrimination. Omitting the required information online caused harm, she said, by sending the message that disabled guests are not welcome.

“It didn’t matter how much money I had, they didn’t value me as a person, as a customer. It’s very hurtful, insulting and humiliating to be treated like less than a person,” Laufer said in an interview.

Justice Department rules implementing the ADA in 2010 require hotels to include in reservation systems “enough detail” about a property’s accessibility features so that people who rely on service dogs or wheelchairs, for instance, can assess whether a hotel meets their needs. But people with disabilities still frequently find websites with insufficient information, according to advocates, and routinely arrive at their destinations to discover the room they reserved is not available or not as advertised.

The ADA allows individuals to sue in federal court when a public accommodation violates the landmark law and to seek an injunction ordering the property to comply and to pay legal fees. ADA plaintiffs themselves are not entitled to collect money damages.

Laufer filed more than 600 lawsuits in five years — including the case before the Supreme Court, which was filed in 2020 against Julianna Acheson, the then-owner of Coast Village Inn and Cottages in southern Maine. Acheson said in an interview that she never intended to violate the ADA and was not aware of the requirement. As soon as she got sued and realized her mistake, she updated her website.

“It wasn’t some act of defiance. I wanted people to call. I wanted to help them if I possibly could,” said Acheson, whose grandparents operated hotels in New England. “If you’re in hospitality, you love your guests and making them happy.”

Acheson’s lawyers told the court it is the government’s job, not Laufer’s, to enforce the law. The right to sue, they say, should be limited to those with imminent travel plans.

“A cottage industry has arisen in which uninjured plaintiffs lob ADA lawsuits of questionable merit, while using the threat of attorney’s fees to extract settlement payments. These lawsuits have burdened small businesses, clogged the judicial system, and undermined the Executive Branch’s exclusive authority to enforce federal law,” said the filing from Acheson’s legal team, which is led by Adam Unikowsky.

Laufer’s attorneys counter that Congress passed the landmark ADA law more than 30 years ago to ensure that disabled people enjoy and experience public services in the same way as non-disabled people. To deny her the right to sue, they say in their filings, would make it more difficult to enforce the law.

“A disabled individual does not need to attempt to reserve a room in order to personally encounter the discriminatory informational barrier to full and equal enjoyment” of the hotel’s services, Laufer’s lawyers, led by Kelsi Corkran of Georgetown’s Institute for Constitutional Advocacy and Protection, wrote in their brief to the Supreme Court.

Lower courts are divided over whether testers have suffered the type of injury that would give them legal grounds to sue.

A district court judge in Maine dismissed Laufer’s lawsuit against Acheson, saying that her history as a tester made it “implausible” that she planned to visit Maine, and that unless she actually planned to make a reservation she could not “allege concrete harm.”

But the U.S. Court of Appeals for the 1st Circuit in Boston unanimously reversed that ruling, writing: “We find that Laufer’s feelings of frustration, humiliation, and second-class citizenry are indeed ‘downstream consequences’ and ‘adverse effects’ of the informational injury she experienced.”

The judges said they were guided by the Supreme Court’s decision in a Fair Housing Act case from 1982, in which the court said a Black tester had standing to sue a landlord for providing false information about the availability of housing even though the tester did not intend to rent an apartment. That case was “right on the nose for Laufer’s case,” the 1st Circuit wrote.

Acheson’s lawyers, however, argue that the two cases are starkly different. In the housing case, the landlord lied to the Black prospective tenant because of her race to prevent her from finding a place to live. In Laufer’s case, “Acheson had no idea who Laufer was. Laufer simply visited Acheson’s website, observed that accessibility information was absent, and then sued,” they wrote.

The appeals court rejected the hotel’s argument that subsequent decisions from the Supreme Court set a higher bar for standing.

While the case was on appeal, Acheson sold the inn. She now runs a historic bed & breakfast in Kennebunkport, Maine, which she says cannot easily be made accessible. The top line of her new website says: “WE ARE NOT ADA COMPLIANT. WE APOLOGIZE FOR THE INCONVENIENCE.”

It is unusual for a plaintiff to drop a lawsuit after an appeals court has ruled in her favor. But that is what Laufer decided to do this summer after federal judges in Maryland issued an order suspending for six months the law license of her former attorney in the separate case.

A Maryland court said attorney Tristan Gillespie probably exaggerated and misrepresented the work he performed in ADA lawsuits on Laufer’s behalf, using boilerplate complaints — containing identical typos and misspellings — in which he changed only the dates and locations and then extracted settlements.

Gillespie told the court he deeply regrets the “mistakes” made in his fee petitions, but denied any misrepresentation made in settlement negotiations as to the time and money spent. Gillespie said he is appealing the suspension of his law license and the finding that he inflated his hours and was paid fees for work he didn’t perform.

Laufer first learned about the work of ADA testers from a law firm investigator, who was dating Laufer’s daughter. The couple, who are no longer dating, had a child together the next year. The investigator’s law firm, which also worked with Gillespie, earned legal fees in cases filed by Laufer, according to the Maryland court order. The order questioned whether Laufer improperly received compensation because of her “familial relationship” with the investigator.

Laufer addressed those questions in a sworn statement submitted to the Supreme Court, saying she never received payments for her ADA claims filed in federal court, though she did receive some money in lawsuits brought under state law. Laufer, whose daughter and grandchild live with her, said they keep separate finances and that the ex-boyfriend has never paid meaningful child support.

In July, Laufer filed a motion dropping the complaint against Acheson, concerned that the controversy would distract from the broader issue of testers and ADA accessibility. The filing urges the justices to find there is no longer a live issue to resolve.

Acheson opposed the motion, saying she hopes to buy another hotel and wants a Supreme Court ruling that would prevent testers from filing future lawsuits. In a filing, Acheson’s lawyers accused Laufer of abandoning her case at the last minute to open the door for other plaintiffs to “resume their campaign of extortionate ADA suits against unwitting small businesses.”

The Supreme Court could still find after Wednesday’s oral argument that the case is moot.

No matter the outcome, Laufer said she is reluctantly ditching her role a tester. The advocacy work helped her emerge from depression after her diagnosis, she said, and reminded Laufer of her mother’s role as a volunteer firefighter and Laufer’s own previous career protecting clients as a security guard. But, she said, the criticism and personal attacks are too taxing.

“I got into this to help people, not to become a villain,” she said, her voice faltering as she became emotional. “When I get out of this, who is going to step in to make sure people have the ability to go to these hotels? Is the federal government going to step in?”

The new owners of the Coast Village Inn and Cottages are not parties to the lawsuit. But they have followed Acheson in addressing accessibility issues clearly for those looking online. A prominent message on their website tells guests that while the property is not currently ADA compliant, “we very much want to correct that.”

“We are taking ADA compliance seriously,” the notice says, “and will be quick to respond to any accessibility questions you may have ahead of your visit.”

This post appeared first on The Washington Post