The Supreme Court on Wednesday will hear a case that could shape the future of the Americans with Disabilities Act.
The case arose when Deborah Laufer, who suffers from multiple sclerosis and uses a wheelchair, filed a lawsuit in 2020 alleging that Coast Village Inn and Cottages in Maine violated his rights under the Americans with Disabilities Act. Their case claims that the hotel failed to meet its legal obligations to provide information about the accessibility of its accommodations. That, the lawsuit argues, caused the hotel to fail to comply with the ADA Reservations Rule, which requires hotels to post information about accessibility features, such as the availability of larger bathrooms to accommodate a wheelchair, on their site. Web.
The company that owns the hotel argues that Ms. Laufer, who lives in Florida, had no standing to sue because she never intended to visit the hotel. She describes herself as an ADA “tester,” and her lawsuit against Coast Village Inn and Cottages is one of hundreds of lawsuits she has filed against companies, citing the law.
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 he suffered discrimination that caused him “dignified harm.” Those groups point to a long history of “testing” plaintiffs defending civil rights, including black plaintiffs who sued over racially discriminatory housing. On the other hand, groups like the US Chamber of Commerce. argue that the ADA requires more direct harm and that evaluators like Ms. Laufer disproportionately harm small businesses through costly 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 ADA, and I remain conflicted, personally and professionally, in this case. For one thing, standing requires a specific injury, something I’m not entirely convinced Ms. Laufer suffered. On the other hand, private trials are currently necessary. so that people with disabilities achieve equal access to companies, public spaces and workplaces.
Too many American media reports have vilified people who use the ADA to enforce accessibility or regain settlements, referring to them as “cry babies” and calling their lawyers “unethical” but the law is largely intended to be enforced by people with disabilities. The Department of Justice itself says that private lawsuits “are an essential complement” to the federal government’s enforcement of the ADA.
Society owes much to the disability rights advocates who fought for the enactment of the ADA, which opened America’s public spaces and infrastructure to a swath of the population that had long been excluded. had denied access.
But more than 30 years later, my hope is that today’s hearing provides an opportunity to revise the law to benefit both the disability community and businesses. Much of the burden of compliance falls on disabled citizens who file lawsuits to gain access to businesses. This could be a time to rethink the ADA framework. The Justice Department could play a larger role in enforcing the law and Congress could amend the statute to give companies a window to correct violations.
Six months after graduating from college, an accident left me practically paralyzed from the chest down. There is currently no cure for my injury; No determination, willpower or physical therapy will be able to solve it.
I do not see my wheelchair as a defining feature, although society reminds me of its presence daily. I became disabled later in life, after 22 years of healthy naivety: 22 years of not having to consider whether a restaurant had stairs or whether store aisles would be wide enough for me to pass through.
Even at higher-end hotels, I often arrive a day early, knowing that despite booking an “accessible” room online, I may not get one or may get a room designated for the hearing impaired, where the lights Flashing lights provide visual notification. that there is someone at the door but there is no guarantee that the bathroom door is wide enough for me to enter with my wheelchair.
The disability community deserves better. And yet I worry that litigants filing repeated lawsuits have begun to have the opposite effect, drawing the ire of businesses and society at large against those they see as money-hungry and litigious. Even federal judges have reprimanded ADA examiners, with lines as The “plaintiffs’ way is clear: sue, settle, and move on to the next lawsuit” and “the current binge of ADA lawsuits is therefore essentially driven by economics, that is, the economics of attorneys’ fees.”
The ad hoc enforcement of such an important federal law by private citizens against potentially endless technical violations leaves business owners wondering why they may be sued. While the ADA, a federal law, does not allow plaintiffs to recover monetary damages, some states have enacted their own versions of the law that do allow financial damages. A disproportionate share of ADA lawsuits are filed in states, such as California, that allow such damages.
Some businesses have said that after paying plaintiff’s attorney fees or settlement costs, they do not have enough cash to fix violations at their establishments.
So how do we encourage compliance with the ADA without burdening the disability community with the unenviable task of litigation?
Right now, federal enforcement of the law is rare, for understandable reasons: Often, someone who has lived with a disability better understands the difference between a real barrier and an inconvenience. But the Justice Department could work with ADA consultants and people with disabilities to improve its own enforcement of the law.
I also think another, admittedly controversial, step is worth considering. Instead of allowing people to sue upon finding a violation, the ADA could be amended to allow a “notice and cure” period, meaning that someone affected by a violation would have to notify the business about the problem and give them the opportunity to solve it. before filing a lawsuit. For years, disability rights organizations have lobbied against this, arguing that no other civil rights law allows companies to discriminate without consequences until victims notify them. The Education and Defense Fund for the Rights of People with Disabilities argues that such reform encourages companies to adopt “a ‘wait and see’ attitude, doing nothing until notified.”
But companies are already adopting a wait-and-see attitude. I can tell you that virtually any business you visit will have a violation, whether big or small. Personally, I would be more willing to serve notices on companies than to devote the time and ability to file multiple lawsuits, and I am an attorney who understands the ins and outs of litigation.
Yes, the ADA has been around for decades and, in theory, businesses should know their responsibilities, but we must recognize that compliance is difficult and that smaller businesses with fewer resources should be given a fair opportunity to remedy their mistakes. While I don’t have all the answers to how a notice and cure period might work, if the Department of Justice helped crack down on enforcement after a notice of non-compliance, I think many companies would rather fix their barriers than pay exorbitant amounts. lawyers. fee.
People with disabilities are already overwhelmed enough. We are saddled with the task of enforcing a federal statute that requires long and expensive trials with no guarantee of redress. We are burdened by the stigma of these lawsuits and the social narrative that people with disabilities are always looking for a handout, despite the good work that some of these fitting room lawsuits can do.
Adding a notice and cure period to the ADA and strong federal enforcement of the law would go a long way toward combating those burdens. We deserve the right to equal access without stigma.
Ms. Clark is an attorney in Washington, DC.
