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ADA Testers & Article III Standing

October 03, 2023

In an amicus brief, Prof. Jasmine E. Harris and other leading disability law scholars explain why civil rights testers are essential to the enforcement of the Americans with Disabilities Act.

Along with 17 other leading scholars and teachers of disability law and antidiscrimination law, Jasmine E. Harris, Professor of Law at the University of Pennsylvania Carey Law School, has filed an amicus brief in support of the respondent in Acheson Hotels, LLC v. Laufer.

The case before the Supreme Court raises the question of whether a civil rights “tester” has Article III standing to challenge a hotel’s failure to provide information about the accessibility of the hotel on its website, even if the person never intended to book a room or stay at the hotel. The amicus explains “how this service denial imposes concrete harms sufficient to establish Article III standing on disabled people, including administrative burdens that fall disproportionately on disabled people and dignitary harms.”

In a recent article published in the American University Law Review, Harris and co-authors Seaman Family University Professor Karen Tani L’07, PhD’11 and Shira Wakschlag, Senior Director of Legal Advocacy & General Counsel of The Arc of the United States, wrote that the case could do wide-ranging harm to civil rights enforcement. “The Disability Docket” applies a “disability lens” to the Supreme Court’s 2021 and 2022 terms, making the case that more legal areas would benefit from this perspective. Acheson Hotels, they write, has implications beyond access for disabled people because it invites the Court to review long-standing precedent regarding tester standing in the context of racial discrimination in housing.

Harris is a law and inequality legal scholar with expertise in disability law, antidiscrimination law, and evidence. Her work seeks to address the relationship between law and equality with a focus on law’s capacity to advance social norms of inclusion in the context of disability.

From the amicus brief:

The ADA aims to eliminate barriers that stop people with disabilities from participating fully in every facet of American life. Not just the literal physical barriers, but also the social structures that foster exclusion. Such barriers remain widespread in the travel industry, and the ADA requires hotels and other travel companies to fix them when it can be done without excessive cost. Online hotel reservation services fall into the easy-to-fix category; it takes just a few hours’ work to update them with accessibility information.

When hotels fail to do that work, people with disabilities suffer both practical and expressive harms. It is no small administrative burden to make a phone call—or, more likely, a series of phone calls—to research different options and book a room. A disabled person need not be on the verge of a trip to suffer this harm. While many nondisabled people enjoy travel planning, scrolling through appealing pictures of sumptuous locales, the reality is often quite different for disabled people. People with disabilities who are denied access to online reservation services, and shunted to often uninformed call centers and uncertain hold times, are thus harmed by that exclusion, regardless of whether they had yet decided to make a reservation. Disabled people are also harmed by the signal sent by the denial of an online reservation service, indicating that they are not considered potential customers or part of the traveling public.

Ms. Laufer suffered these same harms when she encountered—and was excluded from—Acheson’s online reservation service. That she also sought to test Acheson’s compliance with the law does not negate the harm she suffered nor render it legally irrelevant as “self-inflicted,” any more than we would say a first responder was not injured by an on-the-job injury on the theory that they chose to take on the risk and therefore their injury was “self-inflicted.” Ms. Laufer was motivated to be a tester because it was a means of remedying widespread ADA noncompliance. Such noncompliance had already harmed her personally and deterred her from making travel plans.

Compliance testing is crucial if the ADA is to live up to its promise, because government enforcement alone is far from sufficient to change behavior. And it benefits all of us when suits like Ms. Laufer’s secure injunctive relief that makes it possible for Ms. Laufer and other people with disabilities to live fully in the world, as Congress intended when enacting the ADA.

Read the full amicus brief.