A Supreme Court case about the accessibility of hotel websites has understandably caught the attention of the disability and accessibility community. Here’s the short version. Deborah Laufer has filed more than 600 lawsuits. Most of the lawsuits are against small hotels that Laufer claims have failed to indicate whether their rooms are accessible for people with disabilities.
A Vox story explains that Laufer has a pattern of hiring lawyers with a history of unethical behavior. Anyway, this is a concerning case because it involves testers. These are people who check to see if a business complies with regulations even though they have no plans to visit the business.
Ken Nakata from Converge Accessibility and Equal Entry CEO and founder Thomas Logan discuss the key points of the case.
Thomas Logan: Hi, Ken. I just found out about this big new case before the Supreme Court around hotel websites. What can you tell me about the case? Give me an overview of what’s going on.
Ken Nakata: Okay, sure. This case has gotten a lot of attention recently. It’s called “Laufer versus Acheson Hotels.”
Deborah Laufer is the plaintiff, and she filed a lot of these lawsuits. And in all of them, she doesn’t actually intend to stay at the hotel. Instead, she says that she’s a “tester,” and she’s just going to the hotel website and trying to find out whether they adequately describe the accessibility features in the hotel.
The reason why she’s allowed to do that is because the ADA in Title III requires hotels to describe the accessibility features of their rooms and other features in the hotel for prospective guests.
What Is a Civil Rights Tester According to Law?
Thomas Logan: Is this like one of the big points in front of the Supreme Court is the idea that should we allow civil rights “testers” to be able to log this type of issue versus someone that actually directly goes to the hotel?
Ken Nakata: Yeah, exactly, because the constitution requires that you have to have a, what’s called a “case or controversy,” and the Supreme Court’s always interpreted that to mean that you have to have two elements, an “injury in fact,” so that’s a term of art, some kind of injury, and you also have to have an injury of the kind that can be redressed by the court, and that means that you have to have the law on your side, basically, and there’s something that the court can do about it.
The big question in all of these cases involving “testers” is whether a “tester” actually has an “injury in fact.”
Thomas Logan: I think that’s interesting. I think when we consider why is it important to allow for testing versus being an actual customer, I can think of a lot of reasons why we would imagine. You shouldn’t have to show up at a hotel at 11 o’clock at night and find out they don’t have an accessible room for you and now you’re screwed when you show up.
So I think there’s a lot of things to go with that. But what do you think is going to happen in the discussions or the arguments around this, especially, I guess, from the side of arguing against allowing people just to be testing it versus directly showing up?
Ken Nakata: Well, I think that the issue is really going to come down to, on the one hand, whether you actually have an “injury in fact.”
And I think that on that side of the argument, people are going to say, no, you really have to have something that looks and smells like some kind of harm to the person. On the other hand, I think a lot of people are going to focus on the civil rights implications of not allowing standing in this case.
And so, for instance, in the housing context, it’s almost impossible to show discrimination in things like renting an apartment unless you use “testers.”
Providing Information About a Hotel Room’s Accessibility
Thomas Logan: Yes, and I think I just imagined this experience and I think we have technology now to explain all of these items. We have a way to use metadata on websites.
We have a way of saying this room has these dimensions and these door dimensions, we have the ability to explain everything. So, I’m a little bit on the understanding side of if we know what people need to have an accessible room, why can’t we have that be a standard? And why can’t, especially the main hotels follow that, but also even small hotels?
If it becomes a standard, it’s like, yes, this is what you have to do to explain to someone what your room capabilities are. And especially you should never claim your room is accessible if it’s not. But I guess this goes back to another question I would have is; Is that an easy answer for a hotel?
Like, my room is accessible or my room’s not accessible.
Ken Nakata: That’s a really good question, Thomas. So, the ADA standards for buildings have a lot of different requirements for what constitutes an accessible hotel room. You have to do things like make sure that the counters in your bathrooms are of a certain height to allow knee clearance for a wheelchair to get underneath it.
The mirrors have to be at a certain height, and the pipes underneath the drain have to be insulated so that you don’t burn your skin on the hot water that’s going through the pipes. You have to make sure that your door widths are a certain size. You have to make sure that the turning radius is appropriate.
It’s really a long laundry list of things that you have to do. If you are talking about a newly constructed hotel room, I think that it’s perfectly fine for a hotel room if it’s really accessible to say that that hotel room fully complies with the ADA standards for design.
But if it’s an older hotel room, there may be a lot of areas where things may not be perfectly in compliance, but there might be a slight variance. I think that in those cases, it’s going to be a lot harder for those hotels to describe how their room is accessible or it’s inaccessible. And it really is all going to affect different people.
For instance, I was working with a person that we both know in the web accessibility world at a conference, and she was staying at a hotel in downtown Baltimore, we were meeting there. There was just a small variation in the door swing of the main door that led into her room, and it just slightly interfered with the door swing of the bathroom to the point that it interfered with her motorized wheelchair being able to get into the bathroom.
Ultimately, a hotel employee had to come up and remove the door from the bathroom. Which is a pretty drastic change, but unfortunately she was staying alone in her hotel room.
But it is difficult to describe all the accessibility features in your room. And Justice doesn’t really give a whole lot of attention to that. I don’t think they give nearly as much focus on what exactly has to be described in a room to constitute a sufficient description of the accessibility features.
Thomas Logan: I react to the story that you just told, I have a very good friend in Tokyo, Josh Grisdale. He’s written extensively about wheelchair access in Japan, and I learned quite a bit from his book about the idea that there are very different dimensions for different types of wheelchairs.
And as far as my experience, like reading his book, I’m like, wow, like these are knowable widths, heights for these devices, but maybe that needs to be really codified into specificity for law. Depending on people’s specific adaptive equipment, someone could think, I guess I have a little bit of an open mind to someone thinking that they had made their environment accessible to a certain type of device.
And it’s like, no, but by the way, these are the other types of devices manufactured. I do kind of understand some of the nuances there for saying you have the architectural requirements for deeming yourself accessible. And if there’s not specified, it’s difficult to declare that.
Ken Nakata: Yeah. I mean, the hotel room that I was talking about wasn’t in compliance with the new standards.
It’s just a little bit off, but that little bit probably wouldn’t have affected most wheelchair users. But it would affect this person and that little variation, had they made that room accessible, it would have been barely accessible for her, but she would have been able to use that bathroom without having to have the door removed.
Thomas Logan: Yeah, and it makes sense. I mean, this is something hard for people like me who mostly work in the technical space to consider, cause you’re like, “Oh, I need to extend that. Let me just type that into my code and I’ll increase the width or whatever.” But when you’re dealing in the physical world, it’s not something you can do. So, I don’t think about it more deeply.
What Will the Supreme Court Do with This Hotel Accessibility Case?
Thomas Logan: Ken, so, now that we’ve had this discussion, what’s your prediction on how the Supreme Court’s going to decide this hotel accessibility case?
Ken Nakata: Uh, I hate to say it, Thomas, but I think that Deborah Laufer is going to lose and that the Supreme Court is going to really restrict the use of “testers” in civil rights cases and particularly web accessibility cases.
And the reason why I say that is because the court has been looking for some kind of tangible kind of injury in these cases. And that was really made clear a few years ago in Justice Kavanaugh’s decision in Ramirez versus TransUnion.
Thomas Logan: Yeah, and that’s unfortunate. I think when I hear your response, I don’t like it, but that sounds right.
And I guess what I think is maybe any member of the Supreme Court could have a disability any day now, and experience this injustice trying to do their own travel. And then they’d probably get the reason why you don’t want to have to have that experience directly. And you’d like to have the knowledge before you go somewhere that the place you’re staying is actually accessible.
But, unfortunately, I think people don’t think that far ahead. When they do, I think that’ll be something that they’ll really learn from, is the direct experience of why this is important.
Ken Nakata: I agree. Sadly, I agree.
Have you received a legal demand letter?
Legal demand letters are on the rise. With years of experience partnering with ADA attorneys and providing expert witness testimony, we have a unique perspective when it comes to explaining and justifying our clients’ accessibility compliance that will help suffice your legal requirements.
If you are experiencing any legal issues related to the accessibility of your technology, please contact us to discuss how we can help.
