There are folks with disabilities who test public accommodations like a hobby. They do this testing across the country, often from great distances. They justifiably want to see stores, hotels, banks and more satisfy the Americans with Disabilities Act requirement to make their places of business open to persons with disabilities. But, can a tester file a lawsuit based on his/her test?

The First Circuit says yes. The First Circuit found Debbie Laufer has standing to sue in federal court for a violation of the public accommodation provision found in the ADA. Ms. Laufer relies on a cane and wheel chair to get around. She visited the Coast Village Inn and Cottages website and did not see any accessibility information. Neither did several third party booking sites have such information in regard to that hotel. But, the ADA requires websites to post such information.

Hundreds of Lawsuits

As the hotel pointed out, Ms. Laufer has filed hundreds of such lawsuits around the country. She does not intend to actually stay at most, or perhaps all of these hotels. But, the First Circuit ruled that Ms. Laufer did indeed suffer a concrete and particularized injury when she could not locate such information. She suffered humiliation and embarrassment, said the court. The First Circuit relied on a 1982 Supreme Court decision which recognized the right of a fair housing tester to file suit. The Laufer court did note that other circuits, including the Fifth Circuit, have reached the opposite result. Indeed, the Fifth Circuit decision was also filed by Ms. Laufer. See the Fifth Circuit decision in Laufer v. Mann Hospitality, 996 F.3d 269 (5th Cir. 2021) here.

See decision in Laufer v. Acheson Hotels, No. 21-1401 (1st Cir. 10.5.2022) here. See the ABA Bar Journal article here. What does this suggest for other sorts of testers? Even today, there are testers for defamation. Will they now be able to file suit?