Disability rights enforcement could be weakened in latest SCOTUS case

The Supreme Court is hearing a case this week that could do away with so-called “testers."

Self-appointed people who investigate whether businesses are compliant with the Americans with Disabilities Act.

"If the Supreme Court narrows who can enforce the ADA," Michelle Uzeta says. "There will be no ADA enforcement."

The case may also change the way the government enforces civil rights laws across the board.

Michelle Uzeta, deputy legal director at the Disability Rights Education and Defense Fund. She’s an attorney who has specialized in civil rights law since 1993, with a particular emphasis on disability rights and fair housing litigation.

Deborah Laufer, a woman with multiple sclerosis who is an American with Disabilities Act tester.

Jonathan Urick, associate chief counsel at the U.S. Chamber of Commerce Litigation Center.

Part I

MEGHNA CHAKRABARTI: This is On Point. I’m Meghna Chakrabarti. Today’s story is about some missing sentences from one website in Maine. And how those missing sentences could lead to the end of one of the most common means of enforcing one of America’s most historic civil rights laws.

It begins in 2006, with a woman named Deborah Laufer.

Laufer lives in Florida. And she used to work as a special security guard in places at high risk for robbery, such as bank branches. She was their first physical line of defense.

So that made her a woman with a keen attention to detail, an intolerance for injustice, and a quick willingness to act.

But on April 19, 2006, Laufer was at work, and something just felt wrong.

LAUFER: I could hear the AC blowing by my ear, and it was giving me a headache to the point where it was distracting me. And we were unarmed in a high-risk robbery position situation, so you have to be on point if you're unarmed. And I never called out all the time I worked. So my boss knew it was pretty serious.

CHAKRABARTI: She went straight to the doctor’s office. Tests revealed nothing. A few weeks passed. And things got worse.

LAUFER: I woke up, and I couldn't walk. My ex-boyfriend at the time had to carry me to the car and drive me to the hospital, and they did more tests, and I had my second MRI, and I had a spinal tap.

CHAKRABARTI: Laufer had to wait a few nervous days before she returned to a neurologist’s office for her results.

LAUFER: And I sat down and he said, "You have MS."

CHAKRABARTI: Laufer had just turned 40.

Multiple sclerosis is a disease of the brain and central nervous system. Patients can suffer vision and hearing loss, pain, fatigue, and impaired coordination, loss of mobility.

There is no cure.

LAUFER: I cried for about a week straight. It changed everything.

CHAKRABARTI: Laufer lost more than her job due to the MS diagnosis. As the disease progressed, she lost her whole way of life.

LAUFER: I used to swim, used to do martial arts. All kinds of sports.

CHAKRABARTI: Laufer now has to use a walker or a wheelchair to move around.

And the mental health effects soon followed. She suffered a deep depression that kept her locked inside her house for years.

LAUFTER: Basically, my brain shut down, I shut down. I did not exist. I could not exist. I didn't know who I was.

CHAKRABARTI: Twelve years after her diagnosis, all that finally changed.

In 2018, Laufer’s sister invited her on a summer trip to Maine. She loved to travel and agreed. It was time to get out of her house and take back her life.

First step, find a hotel in the state whose car license plates have proudly borne the slogan “Vacationland” for more than 90 years.

So she looked for the accessibility information on websites of hotels and B&Bs she was interested in.

LAUFER: And I couldn't find one. They would say they had accessible rooms, but they wouldn't say how they were accessible. How do I know if they're going to be accessible for me in my wheelchair? It didn't tell whether they had an elevator to take up to your room, whether there was a shower chair, it didn't have any information.  

CHAKRABARTI: Laufer says because of that, she couldn’t go on that Maine vacation and had to stay in Florida.

But if fate had dealt her a cruel hand with the MS diagnosis, this time, it lent her a helping hand. Because it turns out, Laufer’s daughter had a boyfriend. And he was an investigator for the Americans with Disabilities Act.

His job was to investigate whether places of public accommodation like restaurants, bars, theaters, stores and hotels are accessible to those with disabilities.

He told Laufer that what happened to her wasn’t just wrong — it was illegal.

LAUFER: That sparked me. I'm like, "Wait a minute. No. You don't you don't have the right to tell me that I'm not a person. You don't have the right to tell these people." They are a person. They're breathing, living, they exist. That got me pissed off. And that's when I came back to life. 

CHAKRABARTI: And that was the moment when Laufer, the woman with a keen attention to detail, an intolerance for injustice, and a quick willingness to act, knew what she had to do.

Deborah Laufer became a self-appointed disability rights “tester."

GEORGE H. W. BUSH: And now I sign legislation which takes a sledgehammer to another wall. (APPLAUSE)

CHAKRABARTI: On July 26, 1990, President George H.W. Bush signed the Americans with Disabilities Act into law.

BUSH: And once again we rejoice as this barrier falls, proclaiming together, we will not accept, we will not excuse, we will not tolerate discrimination in America.

CHAKRABARTI: The landmark civil rights law prohibits discrimination on the basis of disability in employment, transportation, communications, state and federal programs, and public accommodations.

The law’s architects knew that the sprawling act would be difficult to enforce, as there are millions of businesses that serve the general public.

So they included specific language that says, quote:

“Any person who is being subjected to discrimination on the basis of disability may institute a civil action for preventative relief.”

That’s why informal compliance testing has often fallen to individual citizens with disabilities. They’re the self-appointed “testers,” like Deborah Laufer.

In addition, the Department of Justice has issued guidelines that require hotels to include room accessibility information on their websites.

So this is how we come all the way back to where we began today.

And those missing sentences on one hotel website that could lead to the end of one of the most common means of enforcing one of America’s historic civil rights laws.

Because tomorrow, the U.S. Supreme Court hears oral argument in a case that could limit or eliminate the use of “testers” in ADA enforcement.

And that case is called Acheson Hotels, LLC v. [Deborah] Laufer.

In 2020, Deborah Laufer tried again to go on that trip to Maine with her sister. She browsed the websites of several Maine hotels and B&Bs, including the site for the Coast Village Inn and Cottages.

LAUFER: I looked at their third-party websites. I looked at their personal homepage website and none of them showed any accessibility. They had nothing on there about it.

On September 24, 2020, Laufer filed suit against seven hotels in Maine, including the Coast Village Inn and Cottages.

She had been through the process before. Laufer has filed more than 600 previous cases as a tester. And in each case, Laufer says, her demands were small.

LAUFER: Simple fixes, a website takes like an afternoon to fix, you know, just sending information off to your third-party websites and that type of thing, just updating your information. That's all.  

CHAKRABARTI: She also says, in most of the civil cases she has filed, defendants responded positively.

LAUFER: Most of them corrected the mistakes. And said, "I'm sorry. I didn't realize, let me get that corrected." And then as soon as they were caught, they said, "Okay, no, that's not who we want to be. We want to be this type of company. So they changed it." 

CHAKRABARTI: However, in September 2020, the owner of Coast Village Inn and Cottages responded very differently.

The Coast Village Inn was owned by Acheson Hotels, an LLC owned by Julianna Acheson.

We contacted Acheson’s attorney's multiple times. They declined our request for interviews.

When the Supreme Court hears the case tomorrow, Acheson’s attorneys are expected to argue that as a “tester” who didn’t intend to actually stay at the hotel, Deborah Laufer has no standing.

They also point to Laufer’s 600-plus ADA lawsuits, as evidence of a “serial litigant,” not a genuinely harmed American.

Deborah Laufer completely rejects that argument.

LAUFER: A feeling like I'm not a person, like I don't have the rights that everybody else has, that I'm not human. I'd say that's harm.

CHAKRABARTI: In court briefs, Acheson’s attorneys make another, farther reaching argument. They say only the federal government can “prioritize” how to pursue “defendants who violate the law.”

KAREN HARNED: The Constitution requires that the Executive is the one that is supposed to enforce our nation’s laws. Full stop.

CHAKRABARTI: Karen Harned, executive director of the Center for Constitutional Responsibility, filed an amicus brief in this case. And she recently appeared in a Federalist Society webinar.

HARNED: By letting the citizens do it, you’re losing political accountability because just anybody can go sue to enforce and nobody has a way of stopping that. Right? If you don’t like what’s happening, you can vote somebody out, but you can’t vote away a lawsuit.

CHAKRABARTI: So this is one of the biggest reasons why advocates and policy makers well outside the disability community are also keenly focused on this case.

The Supreme Court, should it choose to do so in Acheson, could roll back the use of enforcement testers in everything from the broad swath of civil rights law on race, gender, and sexual orientation, all the way to environmental law.

HARNED: Clean Water Act and Clean Air Act also have private rights of action that people have used over the years. So, that is the case we make in our brief and it’ll be interesting to see if the court bites, but we will see.

CHAKRABARTI: Given the court’s current conservative tilt, Deborah Laufer worries about how the court might rule. She wonders how many more places are still not ADA compliant. How will they be found? Will they ever be accessible?

LAUFER: If the Supreme Court rules against us and says that testers have no right to test the websites. Then it’s all back to square one, and these people know that they can just do whatever they want with their websites without consequence. There’s no accountability, you know?

As for Acheson Hotels, LLC and the Coast Village Inn and Cottages, Julianna Acheson sold the establishment in late 2022. The Inn’s new owners announce on their website that the Inn is not yet ADA compliant but that they are in the “early stages of an implementation plan” to remove barriers for any disabled guest.

Meanwhile Julianna Acheson now owns a different place, the 1802 House Bed and Breakfast. Its website says that the B&B is “not able to provide accessible lodging since the establishment is listed on the National Register of Historic Places … [and that] completing accessible alterations would destroy the historical significance of the property.”

When we come back, we’ll look more deeply at the potential broader impact of the Acheson case. This is On Point.

Part II

CHAKRABARTI: Today we're talking about the use of testers in enforcing the Americans with Disabilities Act and how those, that use of testers is coming before the United States Supreme Court in a major case tomorrow. Joining us now is Michelle Uzeta. She's the Deputy Legal Director at the Disability Rights Education and Defense Fund and she joins us from Monrovia, California.

Michelle, welcome to On Point.

MICHELLE UZETA: Hi Meghna, nice to be here. So we heard the story of Deborah Laufer and her background about how she became a tester. I'm wondering if we can add to the context of our common knowledge here, which some, with some facts about the ADA itself. So first of all, Michelle, what exactly does the ADA require businesses of public accommodation, I want to specify that part, require them to do?

UZETA: I appreciate you asking that question because there is a lot of misunderstanding about what the ADA requires. The ADA is a carefully balanced law. It balances the rights of people with disabilities as well as the interests of businesses. So the act imposes only very modest obligations on businesses under the ADA, businesses must do a couple of things that I'll highlight.

The 1st is to ensure that all newly constructed and altered facilities are accessible and usable by people with disabilities, meaning comply with accessibility standards when being constructed or altered. The 2nd is to remove existing barriers to accessibility, for example, installing grab bars in a bathroom or striping a disabled parking space in a parking lot.

The third way is to provide auxiliary aids and services to people who are deaf, hard of hearing, blind, or deaf-blind to ensure equal opportunity and effective communication. And then relevant to this case, the ADA requires that businesses modify policies and procedures where it's necessary to afford goods and services to people with disabilities.

For example, allowing access to individuals who use service dogs or for places of lodging like the Acheson Hotel, her hotels, including accessibility information on a reservation system.

CHAKRABARTI: Okay. And that is the so-called reservation rule that the Justice Department has issued.

UZETA: Correct.

CHAKRABARTI: Saying that kind of information is required, not just on the direct websites of the business itself but also on third party reservation systems.

UZETA: What the ADA requires is that places of lodging provide information to those third-party websites. And here, when we say third party websites, we're talking about Booking.com or Hotels.com, Expedia, those types of places. The ADA does not force or give a cause of action to someone if that third party website does not publish that information.

CHAKRABARTI: I see.

UZETA: Ms. Laufer was suing, my understanding is suing Acheson Hotels because she didn't know whether Acheson Hotels had provided that information to the third-party websites. The third-party websites didn't have any information, and to my knowledge Acheson Hotels has never confirmed or denied that they provided information about accessibility to those websites.

CHAKRABARTI: Okay, so just so that we're clear, the ADA has these direct requirements for places of public accommodation, as you said. Then there's this rule from the Department of Justice. Putting those two things together I guess the question is, how important are testers in the enforcement of the ADA?

Because Americans can also file complaints directly with the Justice Department. They don't have to go to court, right? Why does the Justice Department, knowing that, in a brief that it filed with the Supreme Court, it said that testers are actually quite an important part of the overall enforcement scheme of the ADA?

UZETA: So the Department of Justice is the section of government charged with enforcement of the ADA and specifically the title of the ADA that applies to private businesses. But they aren't the main enforcers. People in the community, private litigants, are the main enforcers. And this is exactly how Congress intended the law to work.

When the ADA was enacted back in 1990, it was specifically written to include a private right of action. So people with disabilities whose rights were violated could seek relief in court. So Congress knew that government was too under resourced to undertake meaningful enforcement efforts given the millions of businesses nationwide.

So made a conscious choice to make private enforcement the primary method of obtaining compliance. And as you noted, the United States has acknowledged that and their amicus brief in this case.

CHAKRABARTI: Okay. But, so how many complaints though do get filed directly to the Justice Department? Because in an ideal world, filing lawsuits in court is not the best way to resolve an issue.

That having the government directly be the enforcement arm for the people would be a better method. How many cases get filed or complaints get filed with the DOJ and what do they do with them?

UZETA: It's hard to tell because the DOJ does not proactively publish that information. What I can tell you is that late last year we sent a Freedom of Information Act request to the DOJ seeking data on their Title III complaints.

And again, that's the title that applies to private businesses. We'd asked for data going back over the last five years. And the department Responded in June of this year, reporting that they had received over 92,000 complaints. They could not, however, provide us with any details about the nature of those complaints.

For example, we weren't told what percentage of those might have been against restaurants or hotels or retail stores, and nor could they tell us anything about the outcome of those complaints. So we have no idea how many of those were found to be on meritorious. How many of those may have been looked into?

How many of those may have been sent to mediation? If you go to the DOJ's website, you'll see that they have embarked on some enforcement efforts, but it's not a drop in the bucket when you consider that they've received thousands and thousands of complaints.

So that's a concern, both that there are so many complaints being filed and the department is relatively under resourced and that we can't, we don't have any access to information about what happens with the majority of these complaints.

CHAKRABARTI: Now within the justice department itself just to push on the capacity question, even if we knew what was in those complaints and what happened to them. Do you have information about whether or not you think the Justice Department would, is even capable of managing the volume of complaints that come in?

UZETA: I don't think they are. And I base that on one thing that I've seen recently, which is this National Council on Disability Progress Report on Federal Enforcement of Disability Rights Law, which was published in 2019. That's the most recent progress report, and that report revealed that there's been a consistently declining budget at the DOJ, and a 24% drop in staffing for the civil rights division between 2010 and 2018.

Reducing budget levels, dropping staffing, that does not bode well for federal enforcement. It just seems that enforcement of disability rights is not a resource priority for the government at this time. And again, it makes sense because the government knows and acknowledges that private enforcement is the primary mechanism by which Title III should be enforced.

CHAKRABARTI: I see. The primary enforcement being the testers. Or any person. Any person, I should say.

UZETA: Any person. Correct. Any person injured, which includes testers.

CHAKRABARTI: Okay. And just to reiterate I mentioned it in the previous segment, but the language specifically in Title III of the ADA says any person who is being subjected to discrimination on the basis of disability may institute a civil action for preventative relief.

It's right there. But I guess now, the question is, why do you think testers in particular are important or crucial even to enforce the ADA because, many of these testers, Deborah Laufer included, readily say that they're testing websites or accommodations that they may never actually visit themselves.

So can you talk a little bit more about that?

UZETA: Sure, testers are important because people in the community who are experiencing discrimination often don't have incentive to file suit or the time and the wherewithal to file suit. And ADA cases are stressful. They're costly to bring when you're suing a private business under the ADA.

There is no right to monetary damages. Attorney's fees are not always guaranteed if they are recovered, they rarely cover the actual costs of litigation. ADA plaintiffs and their counsel are often villainized, as we've seen in the press, just the press surrounding this case. Their motives and their characters are consistently questioned.

And these issues exist despite the fact that nobody seriously disputes that the businesses being sued, including Acheson Hotels, are operating in actual violation of the law.

CHAKRABARTI: So I guess what I'm asking is, do you think ADA enforcement without testers would be possible in this country?

UZETA: I think that ADA, without ADA testers, ADA enforcement will go down significantly.

CHAKRABARTI: Meaning?

UZETA: There just won't be people filing suits. When you have people with the fortitude to take on the burden of enforcement, again, given these issues, like you aren't going to, you may, you don't get fees, you may not get attorney. Sorry. You don't get damages. You may not get attorney's fees.

You're being villainized in the press. It doesn't encourage people to want to file suit. So the ADA is a chronically under-enforced statute.

CHAKRABARTI: What's your view on the question of is it overly onerous on businesses, especially small businesses, to come into compliance with ADA?

Are a lot of businesses just lurking in the dark and hoping they don't get caught? I'm just trying to get a better perspective from the, a view from the perspective of the disability community of the kinds of obstacles people face in order to get, find accommodations that are suitable for them.

UZETA: So I think people generally believe that businesses don't come into compliance with the ADA because there's no incentive to do so. They often wait till they're sued or called out publicly, and then deem it a cost of business. So dealing with a lawsuit is, in their minds, better than affirmatively ensuring that they comply with the law.

And I think there's an educational component to the issue, too. Because businesses don't often know what their obligations are, don't know that there's exceptions to the ADA. ADA is not going to require you to gut your entire business and spend millions of dollars on renovations. Because barrier removal is not going to be required in existing facilities if it's not easily done without much difficulty or expense. And policies don't need to be modified if it would fundamentally alter the nature of the services of the business.

I think there's an educational component, too. People just don't get up to speed on what the law requires and doesn't require and think, "I'll just wait until I'm sued." Especially without the threat of monetary damages. There's really nothing that's pushing people to want to proactively comply with the law.

So that's the struggle that we're finding.

CHAKRABARTI: And so just to clarify what you're saying, it's that people, testers or anyone who sues a business under the ADA cannot collect money beyond the attorney's fees that are incurred in the case. That's why there's no monetary damages. Michelle, hang on here for just a second, because I want to say that I'm Meghna Chakrabarti and this is On Point.

So just as a reminder to folks, today we're talking about the Americans with Disabilities Act and the use of testers, self appointed testers, to enforce the ADA. And how those testers are coming up before the United States Supreme Court tomorrow in oral argument. In a case that could change the use of testers in the ADA, plus other legislation, other laws more broadly.

I'm with Michelle Uzeta, she's Deputy Legal Director at the Disability Rights Education and Defense Fund. And Michelle, I want to just present a little bit of the point of view of some businesses around the country. Because we spoke with Jonathan Urick, associate chief counsel at the U.S. Chamber of Commerce Litigation Center. And the Chamber directly represents 300,000 businesses, and indirectly represents the interests of three million companies of all sizes.

Urick filed an amicus brief on behalf of the Chamber of Commerce to the Supreme Court in the Acheson case.

Here’s how he sums up the Chamber’s thoughts on the matter:

JONATHAN URICK: The Americans with Disabilities Act is a very important law, helping those with disabilities fully participate in society, but unfortunately a small group of opportunistic plaintiffs' lawyers have hijacked the ADA, creating a cottage industry of abusive tester plaintiff litigation, targeting vulnerable small businesses to extort quick settlements and attorney's fees.

CHAKRABARTI: As we’ve noted, plaintiffs cannot demand monetary damages against businesses in ADA cases. They can only request that the business come into compliance, and repay attorney’s fees, which can sometimes be substantial.

As for that “cottage industry” as Urick calls it, he points out that of all ADA cases filed in a 12-year period between 2009 to 2021, more than 40% of those cases were brought by just 18 plaintiff firms. More than half the cases were filed in just three states: California, New York and Florida.

The Chamber estimates that legal fees for the tens of thousands of cases brought during that time total approximately $6 billion. And again, those are fees paid to plaintiff lawyers.

Urick says small businesses often can’t bear the cost of those attorney’s fees.

URICK: They're often for starters, small businesses, many of whom are owned by immigrants. For these vulnerable businesses, protracted litigation could mean bankruptcy and just shutting their doors for good. Because defending an ADA lawsuit can, you know, easily cost tens of thousands of dollars or much more, and these small, vulnerable businesses are often forced to quickly settle even meritless ADA claims, simply because they lack the time and resources necessary to defend the litigation.

CHAKRABARTI: Urick says the Chamber believes the system overall can be improved for disabled Americans and small businesses, if adjustments are made so that businesses are allowed more time to address alleged ADA violations before a lawsuit is filed.

But until then, Urick writes in the Chamber’s amicus brief that, quote: “The proliferation of ADA lawsuits has not been good for anyone, other than a small number of opportunistic plaintiffs’ attorneys who file hundreds of these lawsuits on behalf of tester plaintiffs.”

URICK: These abusive tester suits under the ADA should end. But, of course, if a plaintiff was actually discriminated against. Or was actually blocked, their accessibility was actually impeded in some way. They actually tried to visit a business or have a genuine intent, a credible intent to visit a business. That's a totally different story, but these sorts of tester claims where there's absolutely no intent to ever visit the business and no discrimination at all. Those should not be allowed.

CHAKRABARTI: That was Jonathan Urick, the associate chief counsel at the U.S. Chamber of Commerce Litigation Center.

Michelle, I'm going to get your response when we come back from a quick break, but also I want to let folks know, what do you think about the use of testers in the Americans with Disabilities Act. If you're a business owner, if you are part of the disability community, we'd love to hear your thoughts.

Part III

CHAKRABARTI: Today I'm joined by Michelle Uzeta. She's deputy legal director at the Disability Rights Education and Defense Fund. She's specialized in civil rights law since 1993 with a particular emphasis on disability rights and fair housing litigation. And Michelle's joining us today to talk about a case that the U.S. Supreme Court is hearing tomorrow called Acheson Hotels, LLC vs. Laufer.

And it's a case which could change how so-called testers are used in enforcing the Americans with Disabilities Act. And Michelle, you heard from the Chamber of Commerce there a little bit earlier. I wanted to get your response first of all to what Jonathan Urick said about, he called it a cottage industry, the number of cases brought by testers.

That benefits, it seems like he was implying, not even the testers, but simply lawyers who are bringing, a small group of lawyers, some 18 plaintiff counsel groups that are bringing the vast majority of these cases, because they're the ones who end up getting paid at the end of the day.

Your thoughts on that?

UZETA: The the business community has been pushing that cottage industry narrative for many years. And it's largely a false narrative. As I mentioned before, the ADA is a chronically under enforced statute. And despite the claims by the business community and the chamber of commerce has been pushing this for some time, that the ADA cases are flooding or clogging the federal court system, actual court data shows that ADA cases have averaged only 2.2% of federal civil filings over the last 15 years.

So this is a very small number of cases that we're talking about, not the proliferation that the business community puts out there.

CHAKRABARTI: I'm looking at the brief filed by the Chamber of Commerce and to put some, they choose, in fact, it's the same sort of set of numbers, but they have a different interpretation, right?

They say that the number of cases filed in 2013 was 2,722, and then they say in 2021, that number grew to 11,452. Can you explain what as the reason behind that rise?

UZETA: There could be a number of factors. More people are aging and becoming disabled and require accessibility features. Businesses have been starting up.

People are becoming more aware of their rights and wanting to sue. And then there's also, testers have been doing a lot of testing to make the community more accessible. The chamber's data about the very small number of people being responsible for, I think it was 40% of filings, that sounds right. Because as I mentioned before, people aren't chomping at the bit to file ADA lawsuits.

They're not easy to bring. So people who have made it their life's mission to improve the accessibility of the community are the ones who are really out there doing that work. And trying to make the community more accessible through these lawsuits.

CHAKRABARTI: Yeah. And it is pretty clear that they are the ones doing the work, right?

Because I'm seeing here that some, in the past decade, there's five particular, they call them tester plaintiffs, who each filed more than six, sorry, a thousand cases. And Deborah Laufer is one of the group of about a dozen who filed 500 or more. So we are talking, you're right, we are talking about a small number of people here.

But then that brings up the major question that has pushed the Acheson case all the way to the Supreme Court, and that is the question of standing right? Because Acheson is arguing that people like Deborah Laufer and other self-appointed testers are testing businesses that they have no intention of using or going to.

And so therefore, they don't really have a claim to direct harm under the ADA. So therefore, they shouldn't be able to bring these cases. What's your response to that, Michelle?

UZETA: Going to a website and seeing that the online reservation system does not contain information that it's legally required to present, so that it makes that reservation system, essentially inaccessible, or unusable to people with disabilities, in the same way that a person without a disability can use that reservation system, does cause a concrete harm. It causes a dignitary harm. People are being given the message, through that lack of information, through that lack of compliance, that they're not valued in the marketplace.

They're not valued as customers. Ms. Laufer for described it as feeling invisible. Not feeling like a person. The message is clearly, "You do not belong. We do not want you here. We aren't going to put that information to encourage your patronage." That is a concrete harm. Dignitary harms resulting from unequal treatment and discrimination have been recognized by the Supreme Court for decades, going back to the 1950s in the context of race, disability, and other things.

So those are harms that have been found actionable by the courts and should be here, if the court follows that precedent.

CHAKRABARTI: Can you tell me a little bit more about that? Because this is one of those Supreme Court cases where, as I was reading through all the briefs, each party is bringing different sets of previous SCOTUS decisions to their defense.

For example, there's a case whose name slips my mind right now. And it'll come back to me in a second. Where it was a case of racial discrimination in housing. And a tester went to a particular location several times and was denied housing because she was a Black woman.

And so even though she was a tester and may not have actually intended on living in this location, because she actually went to the place and was denied three times, the Supreme Court found that, "Yes, that is clear evidence of harm." On the other hand, that same case is being referred to by Acheson and saying, "Yeah, the woman went to the place, she was actually denied the ability to live in that location, so therefore, it is concrete harm."

They say that's different from what Deborah Laufer is alleging because of the, again, the lack of intentionality in staying in the location. And that Laufer was never actually denied by Acheson the ability to stay in the hotel, right?

UZETA: Right. But Laufer was denied the ability to utilize and have equal access to the reservation system. Which is a service that is covered by the ADA.

The ADA does not just ensure access to facilities, but also to services offered by places of public accommodation and the reservation system is one of those services. And so you asked about the standing analysis. As early as 1958, the Supreme Court recognized that motive is not a factor in a standing analysis.

It simply does not come into play. And in a case called Evers v. Dwyer, the court held that a Black plaintiff who rode a segregated bus in Memphis, for the purpose specifically of instituting litigation, had standing, even though he had never ridden a bus in Memphis before and perhaps never intended to do so in the future.

And the court has found similarly in the cases following Evers. I think the case that you were referring to is the 1982 case of Havens Realty Corporation v. Coleman.

CHAKRABARTI: That's it. Yes. Thank you.

UZETA: Which is where the court recognized the standing of a Black tester injured by violations of the Fair Housing Act and specifically the failure to provide, of a housing provider to provide accurate or complete housing information about the availability of a unit.

So in the decades following Havens, injured testers have been held to have standing to challenge ADA violations in a number of cases across multiple circuits. And in those cases, the testers' motive, whether they wanted to stay at the hotel, whether they wanted to actually make a purchase, was deemed irrelevant in those cases.

Consistent with this history of recognizing tester standing and not making standing depend on motive.

CHAKRABARTI: Now I just want to let folks know that the reason why we're getting into the weeds here a little bit regarding these previous cases is because essentially this is what the Supreme Court case tomorrow is about.

And if the court rules that testers cannot bring cases to court for ADA violations, as we discussed earlier, it's one of the main tools of enforcement for the ADA, so it might undermine that whole aspect, Title III, of the Americans with Disabilities Act. And should that happen, Michelle, I'm going to come back to you in just a second and ask you what you think the implications might be. But there's another thing that keeps coming up in the briefs regarding what constitutes harm.

And therefore, if you can measure that a person is actually harmed, they have standing to bring a case. The First Circuit, when Acheson came up from the main district court to the First Circuit Court of Appeals, said that Laufer does have standing, Deborah Laufer does have standing, because she experienced what the court called informational harm.

Can you explain that a little bit?

UZETA: That's something that derived from Havens. Because the plaintiff in that case, Coleman was denied information to what she was legally entire entitled under the Fair Housing Act as a tester. The First Circuits' ruling was in line with Havens and finding that Ms. Laufer was entitled to certain information.

Based on the Department of Justice regulation, which is an interpretive regulation that interprets the statutory requirement to modify policies and practices and that denial of information caused her harm. The kind of harm that we're talking about, the frustration and inability to have equal access to the reservation system.

CHAKRABARTI: Got it. Underneath all of this, there's that very interesting argument that we heard again in the first portion of the show, about essentially there are some people in Acheson arguing against the constitutionality. The fundamental constitutionality of the use of testers to enforce federal law.

Because you heard someone from the Federalist Society say that, "Look, it's only, the Constitution says it's only the executive branch that can do this. And private citizens can't act as their own, quote, 'private attorney generals in determining who's in compliance with federal law or not.'"

I wonder if that argument may fall on sympathetic ears in the current Supreme Court, because it does go to the heart of the separation of powers. If we had a different law that talked about, let's say, who could be licensed or not licensed for a gun, and it fell upon individual citizens to decide you could get a license for a gun or not.

Would that not be troublesome, Michelle?

UZETA: Oh, I don't even know how to answer that question. One would hope that in the context of the ADA, that argument does not resonate with the judges because without, just without private enforcement the ADA would be gutted. And Congress, when it enacted the act, it found that people with disabilities were being placed in an inferior position in society because of both intentional discrimination and benign neglect discrimination.

That's unintentional and people need to be able to enforce those rights, as Congress intended, by providing a private right of action under. I don't think it is accurate to say that the department or government should be the only ones to enforce the law, because that is just too overwhelming a law to enforce when you consider the sheer number of businesses that exist in the United States.

CHAKRABARTI: So given that, can you tell me more about what could potentially happen if the court finds that testers do not have standing to bring cases of alleged ADA violation to court?

UZETA: Obviously, there's concerns that testers will no longer be recognized in areas where for decades previously, they were relied on and recognized for civil rights enforcement, like fair housing and the ADA. But there's also the concern that the court will stop acknowledging dignitary harms that result from unequal treatment and discrimination as a type of harm that conveys standing. And that crosses different areas, race discrimination, religious discrimination, discrimination against people who are LGBTQ plus.

And that's a real concern. Or that the court will hold that dignitary harms must be accompanied by a certain motive in order to be actionable. That, in my opinion, and the disability rights community's opinion, would be a step backwards for civil rights in this country.

CHAKRABARTI: It's interesting to note, as you well know, Michelle, that there is, in fact, no sort of broad-based legal consensus about this.

Because as far as I understand, the use of testers has found, I guess what's called, in legal jargon, a split circuit, right? When these questions have come before different circuit appellate courts, they've decided in different ways. Is it possible that whatever the Supreme Court decides will put a long term resolution to that, to that split? It seems like there is a lot on the line here for oral argument tomorrow.

UZETA: I think it'll definitely provide clarification to litigants and defendants alike. I don't know that any of the circuits have expressly come out and said there should be no tester standing. The cases where tester standing was not recognized, at least in the ADA context, had to do with the sufficiency of the pleadings and whether the individual plaintiff was sufficiently pleading that they had been harmed.

So that's different than saying tester standing does not exist. So the circuit split, I don't think is as deep as people like to think it is.

CHAKRABARTI: Okay. So does that mean that the Supreme court might find something similarly narrow, in just in the specific case of Deborah Laufer herself?

UZETA: I think that is a possibility, that's certainly what the government's position was, they came out, they filed their amicus brief in support of neither party, but did come out strongly in support of testing, but ultimately found that Ms. Laufer should not be determined to have testing under the specific, or to have standing, rather, under the specific facts of her case.

CHAKRABARTI: Yeah. Just to reiterate, there's, I think, the possibility, depending how far the court decides to go, testers are used in other laws, right? We talked about other civil rights laws, environmental laws, so this could really have a broad-based impact. But in the few seconds that we have, Michelle, left, what does it tell you that even 33 years after the ADA was passed into law, that people like Deborah Laufer continue to find so many hundreds of businesses that are in alleged violation?

UZETA: It tells me that voluntary compliance is a myth. And one thing that was said by the individual from the Chamber of Commerce, which is a known false narrative, is that ADA litigation, particularly cases brought by testers, are fabricated or abusive, meritless, brought in bad faith, etc.

And that just isn't backed by data.