Before getting started on the blog for the week, I wanted to let everyone know that the ABA Law Practice Today just published my article entitled AI and Persons with Disabilities: the Good and the Bad. It can be found here.
Last week, we discussed Acheson Hotels brief in the Laufer case. Also last week, DOJ weighed in with their view. Their Amicus brief, here, supports neither side. However, it does say that Laufer loses, but the more extreme arguments put forward by the hotel should be rejected. As usual, the blog entry divided into categories and they are: Laufer loses on standing grounds; some of the arguments of Acheson Hotels go too far, and thought/takeaways. Of course, the reader is free to read any or all of the categories.
Laufer Loses on Standing Grounds
- In adopting the ADA, Congress recognized that disability discrimination includes both intentional exclusion and the failure to make modification to existing facilities and practices in order to afford equal access to individuals with disabilities.
- The Reservation Rule was formulated by DOJ to carry out title III’s provision governing public accommodations.
- The reason behind the Rule was that individuals with disabilities who have reserved accessible hotel rooms often discovered upon arrival, that the room they reserved was either not available or not accessible (happens quite frequently to me).
- The Reservation Rule requires a hotel to identify and describe accessible features in the hotels and guest rooms offered through its reservation service in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets their accessibility needs.
- The Supreme Court has long held that an individual suffering in violation of the statutory right to be free from discrimination has standing to sue even if she voluntarily subjects herself to discrimination in order to test the defendant’s compliance with the law.
- In Havens Realty, the Supreme Court said that testers had standing because the tester suffered an injury in precisely the form the statute was intended to guard against.
- Courts have applied Havens Realty to hold that testers suffering violations of statutory rights to be free from discrimination have standing to sue under a variety of other laws, including title III of the ADA.
- Tester suits provide an essential complement to the federal government’s limited enforcement resources-as Congress has specifically recognized by funding private tester enforcement of the Fair Housing Act (FHA).
- The Reservation Rule unlike the provision in Havens Realty, does not provide a freestanding right to information. Therefore, an individual who merely views a hotel’s online reservation service without intending to use the service to make or consider making a reservation does not have standing because she has not suffered any injury within the meaning of title III and the Reservation Rule.
- Concrete injuries are not limited to traditional tangible harms such as physical harms and monetary harms. That is, various intangible harms can also be concrete.
- The Supreme Court has held that Congress can elevate to the status of legally cognizable injury concrete, de facto injuries that were previously inadequate in the law.
- In TransUnion, the Supreme Court identified discriminatory treatment as the classic example of the harm that Congress can elevate into a cognizable injury, which was the case in Havens Realty.
- Havens Realty granted standing even where a person subjected themselves to the violation in order to test the defendant’s compliance with the law.
- A suit based upon the violation of a statutory right to be free from discrimination constitutes one circumstance in which a plaintiff need not alleged any additional harm beyond the one Congress has identified.
- Since Havens Realty, federal courts have consistently held that testers have article III standing to sue under various provisions of the FHA. Similarly, courts have recognized the approval of tester standing to title II of the ADA and to title III of the ADA.
- With respect to title III of the ADA, courts have uniformly recognized that a plaintiff encountering an architectural barrier at a place of public accommodation has suffered a concrete injury even if she visited only to test for compliance with title III.
- The right to be free from discrimination does not depend upon the motive behind a plaintiff’s attempt to enjoy the facilities of a particular place of public accommodation. Therefore, anyone suffering an invasion of the legal interest protected by title III has standing, regardless of his or her motivation in encountering that invasion.
- In the title III context, a plaintiff’s mere awareness of an ADA violation at a place of public accommodation that she had neither visited nor intend to visit does not suffice for standing. Similarly, a plaintiff does not have standing to seek an injunction merely because he or she previously encountered a barrier to accessibility. Instead, the plaintiff must establish a sufficient likelihood that he or she will be affected by the allegedly unlawful conduct in the future.
- A plaintiff can establish standing by showing that she is currently deterred from patronizing a place of public accommodation.
- Private litigation is essential to effective enforcement of the ADA because it would be impossible to secure broad compliance with antidiscrimination laws absent suits by individuals experiencing discrimination. Testers are a key component of vast system of private enforcement.
- Testers are critical to the effective enforcement of the FHA. Most housing discrimination is covert, and testers play an essential role in uncovering and remedying racial steering and other unlawful practices.
- Testers are critical for enforcement of title III. The unavailability of damages reduces or removes the incentive for most persons with disabilities injured by inaccessible places of public accommodation to bring suit under the ADA. Therefore, testers play an important role in ensuring that the statute yields its promise of equal access.
- Title III and the Reservation Rule do not create any freestanding informational right. Instead, they give individuals with disabilities the right of equal access to a hotel’s reservation services. Accordingly, Laufer lacked standing because she has not suffered an injury in the form the statute was intended to guard against.
- The Reservation Rule’s requirements focus on the reservation process and requires a hotel to hold accessible rooms for individuals with disabilities, to allow those rooms to be reserved in advance, and to ensure that, once reserved, those rooms will actually be available upon check-in.
- While the Reservation Rule requires a bunch of things, it does not confer an informational right upon every individual with a disability who merely visits the hotel’s website without using or attempting to use the reservation service.
- The Rule interprets the statutory requirement that public accommodations make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford their services to individuals with disabilities. The particular service the Rule addresses is the ability to review and reserve available rooms through websites or other means. A plaintiff with a disability prevented from using that service because of a lack of accessibility information suffers a violation of the right secured by the statute and has standing to sue.
- Laufer has no genuine plan to make a reservation and also disclaimed any intent to travel to Maine. Further, she has not alleged that she used, attempted to use, or plan to use the hotel’s reservation service. Instead, she only alleged that she viewed the website and the third-party booking sites to discover that they violated the Reservation Rule and felt frustration and humiliation as a result. This sort of allegation is not sufficient to satisfy article III.
- Laufer was not denied equal access to the service because she was not attempting to use it at all.
- While two individuals driving by a restaurant and seeing that the wheelchair accessibility is lousy would have the same experience, it is only the individual prevented from visiting the restaurant that would have article III standing to sue because it is only that individual that suffered the denial of rights secured by title III.
- Laufer lacked standing to assert any injury to the rights created by title III and the Reservation rule because none of the rights identified in her suit actually belong to her.
Some of the Arguments by Acheson Hotels Go too Far
- The argument that a regulation is involved rather than a statute goes too far because the Rule is an interpretation of title III’s requirement that hotels make reasonable modifications to afford individuals with disabilities equal access to their services. So, the Reservation Rule does not go beyond what title III authorizes.
- Title III of the ADA applies to services, including those offered on the web.
- The Reservation Rule ensures that a hotel’s reservation services comply with the requirements of title III.
- Title III of the ADA provides that failure to make reasonable modifications in order to afford equal access to individuals with disabilities is discrimination. 42 U.S.C. §12182(b)(2)(A)(ii).
- For an injury to be particularized, it must affect the plaintiff in a personal and individual way even if the person experiences that violation over the Internet.
- TransUnion did not overrule Havens Realty or any other precedent and it did not address tester standing at all.
- In TransUnion, the Supreme Court observed that Congress may validly recognize otherwise insufficient harms as being sufficient for standing and it particularly referred to the example of discriminatory treatment. Therefore, no further showing is required to establish standing.
- The harms accompanying discrimination in public accommodations are sufficiently analogous to injury traditionally forming the basis for such suits and American courts.
- Title III of the ADA provides a cause of action only to individuals subject to real-world harm of discrimination and not to the public in general.
- TransUnion did not overrule the Sunshine law cases.
- Discriminatory action results in downstream consequences long recognized by Congress and the courts.
- That the injury is self-inflicted does not defeat article III standing. Havens Realty held as much.
- The case is now moot because the hotel’s website has been updated to supply the information Laufer alleges the Reservation Rule requires. That is, the website has been updated to explain that the hotel was not equipped at this time to provide ADA compliant lodging. Laufer has not disputed that this information is sufficient to allow her to assess independently whether the hotel meets or accessibility needs. Therefore, her claim is moot.
- While the mootness question is more difficult with respect to third-party services that have not been similarly updated, the Supreme Court could very well conclude that any remaining controversy is simply too insignificant to justify resolving the standing question on which it granted certiorari.
- The hotel website has been updated by new owners who state they are taking ADA compliance seriously and the website contains no indication that accessibility information will be removed in the future. Courts have held that a defendant’s changes to its website may moot a Reservation Rule claim in analogous circumstances.
- The Reservation Rule is such that it is very unclear whether the hotel providing accessibility information to third-party services was likely to address any future injury.
- Regardless of mootness, circumstances have changed so as to greatly diminish the practical significance of the dispute between the parties. So, the Supreme Court could simply say that events have so overtaken things that the anticipated benefits of a remedial decree no longer justifies the trouble of deciding the case on the merits.
- As mentioned last week, there are important distinctions between the FHA and the ADA in terms of the injuries the statute specifically refers to. In the FHA, emotional injuries are clearly implied in the statute. However, with title III of the ADA that is simply not the case with respect to the remedies as only injunctive relief and attorney fees are available to private litigants.
- If a statute does not encompass anything for emotional injuries, how is suffering frustration and humiliation something that gives a person standing?
- Saying that disability discrimination includes both intentional exclusion and the failure to make modifications is a huge indicator that DOJ may argue in the future that failure to accommodate (if it is prosecuting a title I claim against a nonfederal governmental entity), or the failure to reasonably modify a nonfederal governmental entity’s programs, benefits, activities, and services (title II), do not require an adverse action beyond the failure to accommodate/modify.
- To my mind, a real argument exists whether Laufer has subjected herself to an injury in precisely the form the statute was intended to guard against.
- Open question to my mind as to whether the Reservation Rule is one of those regulations where a court would decide a cause of action exists for violating that rule.
- It is really hard to believe that Laufer is going to prevail, especially now with DOJ weighing in against her.
- The DOJ says that self-harm doesn’t matter with respect to standing in a case like this. The hotel says otherwise. The FHA and the ADA are different enough statutorily that it will be interesting to follow where the Supreme Court goes with this argument.
- The architectural barrier cases are a completely different kettle of fish than Laufer’s. In the architectural barrier cases, a person is actually showing up to the particular physical site in most cases.
- The DOJ brief talks about how most housing discrimination is covert. My question is whether most disability discrimination is covert. I am not entirely sure about the answer to that question if my own experience is any indication. That distinction might matter.
- The economics of practicing law are such that it simply may not be financially doable to prosecute cases if a tester is not involved.
- With respect to my experience as a deaf (small d intentional), person, I don’t think the Reservation Rule necessarily works very well. I personally have gone on to websites that have said they have rooms that are accessible to the Deaf, deaf, and hard of hearing only to find out that is not the case when I call and get the details of what that means. It also happens all the time with respect to calling the hotel to make the reservation. I can tell you that if a hotel says on their Internet site that they are accessible to the hearing loss community, I don’t believe it. Part of the problem is that the hotels are very focused on structural concerns and much of what a person in the hearing loss community needs doesn’t have much to do with the built-in environment necessarily. The architectural guidelines are also very mobility centric and blind/visually impaired centric with the hearing loss community getting lost in the shuffle. Finally, I am often surprised how often hearing accessible rooms are not available for purchase considering the Reservation Rule’s mandate to ensure availability. It is hard for me to believe that the demand for such rooms is that high at the hotels I frequent.
- The DOJ in their brief flat out says that title III of the ADA applies services offered on the web and that a person could have standing if only a website is involved.
- With respect to the DOJ statement, that discrimination has been elevated to be analogous to injury that have traditionally formed the basis for suits and American courts, Cummings, which we discussed here, very much says otherwise.
- As noted last week, makes sense that the website would be updated to say essentially persons with disabilities need not come because the facility is not accessible. However, there are two problems with that. First, why couldn’t the facility be made accessible to a person in the hearing loss community? Such an individual could have an accessible room without any structural modifications at all if a kit was provided. Second, the statement on the website would be enough to deter an individual from actually visiting the hotel and therefore would give that individual standing providing that individual could show that they had an intent to return to that hotel should it become accessible. So, the website helps them win this particular case and goes a long way to having them lose a case involving a person with a disability that would actually be interested in staying at the hotel.