Ouroboros – the snake devouring its own tail is, according to Encyclopedia Brittanica, an ancient symbol of the endless cycle of death and rebirth. It’s a little like serial litigation under the ADA, where the same old issues and plaintiffs have been appearing and re-appearing for at least a decade. Now, however, it looks like there may be a real breakthrough (or setback, depending on where you stand).
On March 27 the Supreme Court granted certiorari in Acheson Hotels LLC v. Laufer, one of several recent appellate decisions addressing whether one of the most prolific ADA serial filers of all time, Deborah Laufer, has standing to sue hotels she never intends to visit because their websites lack accessibility information. You can read the background to this unfolding story in many places, including this blog and others.¹ A decision that Ms. Laufer does not have standing could – depending on how it is written, finally cut the head off this particular snake and end the cycle of serial ADA litigation.
By way of background, the Supreme Court reminded us in the Transunion case that there are two steps in a question about standing to sue under a federal statute. Step one is whether Congress created an injury that the plaintiff can sue for. This is a question of statutory interpretation. Step two is whether that injury is sufficient to satisfy the requirements in Article III of the Constitution. Just because a statute creates an injury doesn’t mean it is the kind of injury sufficient for the Constitution. The constitutional standing issue was the exciting part of Transunion and justifiably got all the attention.
The petition for certiorari in Acheson Hotels argues primarily that Laufer lacks constitutional standing, but although it isn’t as sexy I think the Supreme Court can avoid the constitutional standing issue because Laufer did not suffer a statutory injury. “Tester standing” cases holding in favor of ADA serial litigants like Laufer rely on the Supreme Court’s decision in Havens Realty Corp. v. Coleman for the notion that testers can suffer a statutory injury, so it seems Haven would have to be overruled to decide against Laufer. That idea mis-reads Havens the tester standing cases uniformly ignore the most important phrase in that decision and therefore reach the wrong conclusion about what Congress intended when it passed the ADA.
Havens is often characterized as a case about tester standing, but that is a misleading generalization. In Havens black and white testers tried to get information about apartments under the pretense of wanting to rent. The white tester was told the truth – apartments are available – but the black tester was told a lie – apartments are not available. They sued claiming violations of two sections in the Fair Housing Act, §3604(a), which prohibits a discriminatory refusal to rent, and §3604(d), which prohibits discriminatory lying about the availability of an apartment. The Supreme Court found that the black tester could not sue under §3604(a) because it explicitly requires a bona fide intention to rent, which the black tester did not have. That brought it to the standing question: had the black tester suffered an injury when he was lied to about an apartment he never intended to rent anyway.
Since Supreme Court decisions are precisely written, it is worth looking at what the Court said when it discussed this issue:
The black individual respondent (Coleman) has standing to sue in her capacity as a “tester.” Section 804(d) establishes an enforceable right of “any person” to truthful information concerning the availability of housing. A tester who has been the object of a misrepresentation made unlawful under § 804(d) has suffered injury in precisely the form the statute was intended to guard against, and therefore has standing to maintain a damages claim under the Act. That the tester may have approached the real estate agent fully expecting that he would receive false information, and without any intention of buying or renting a home, does not negate the fact of injury within the meaning of §804(d). If, as alleged, Coleman was told that apartments were not available while white testers were informed that apartments were available, she has suffered “specific injury” from petitioners’ challenged acts, and the Art. III requirement of injury in fact is satisfied.
I have highlighted the critical language, “injury in precisely the form the statute was intended to guard against.” If you want to know whether a tester has suffered an injury created by statute you have to ask what injury the statute was intended to prevent. Whether they call themselves a tester is irrelevant because no matter what their motivation, they can only sue if they have suffered an injury in precisely the form the statute was intended to guard against. If they have not the lack of constitutional standing is irrelevant. You never get to that question.
So just what injury was Title III of the ADA intended to guard against? That question is answered in 42 U.S.C. §12182(a), the general prohibition on disability discrimination. Title III is intended to guard against discrimination:
on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation
Every following subsection and regulation merely elaborates on how discrimination might occur; they do not enlarge the harm Congress intended to prevent, which was discrimination on the basis of disability in the full and equal enjoyment of goods, facilities and so on.
Cases looking a Havens often conclude that an ADA tester can suffer an injury without a bona fide intention to use goods and services because the black tester in Havens had no bona fide intention to rent. That claim ignores the Supreme Court’s careful observation that §3604(d) is not about renting, but about obtaining truthful information. The harm the statute was intended to protect against was getting false information because of race; that harm did not depend on how the information was or was not going to be used.
Now let’s look at Ms. Laufer. The regulations interpreting the statute require that hotel websites provide information about accessibility. Is this requirement that information be provided analogous to the requirement of truthful information in §3604(d)? No. Section 3604(d) does not prohibit lying in general about the availability of an apartment. It only prohibits lying with a discriminatory motive. If the defendant in Havens lied to everyone regardless of race there would have been no violation of §3604(d). There was a violation only because the white tester was told the truth and the black tester was lied to. The hotel website regulations require the same information be provided to everyone, whether or not they are disabled. If a website lacks the information it is not discriminating by providing non-disabled people different information than disabled people; it treats everyone equally. The black tester in Havens suffered an injury his white counterpart did not. Ms. Laufer suffered exactly the same injury a non-disabled visitor to the hotel website would suffer.
Of course in theory the information might have been more meaningful to Ms. Laufer than to a non-disabled person² who did not need the information. But since the regulation itself does not distinguish among users we have to turn back to the Supreme Court’s inquiry – what is “injury in precisely the form the statute was intended to guard against?” That injury is denial of equal access to goods, facilities, services and so on because of a disability. Someone who does not intend to visit a hotel cannot suffer that injury no matter what they find or do not find on the hotel website.
Laufer advocates will say that this is too narrow a definition of ADA injury; that access to the information itself is protected by Title III and so denying her the information is an injury. The problem is that §12182(a) only prohibits “discrimination on the basis of disability” in access to goods, services, etc. The absence of information on a hotel website is not discrimination on the basis of disability because no one, regardless of disability, has access to information that simply isn’t there.
The last thin reed upon which a pro-Laufer argument can be made is that although the lack of information is not discriminatory in the sense that some get the truth and some don’t, it is discriminatory because it offends the dignity of a disabled person in a way that it doesn’t offend the dignity of a non-disabled person. The first flaw in this argument is the assumption that those with disabilities are necessarily more sensitive to implicit slights against them than non-disabled persons might be. Someone with a brother, child or parent who is disabled may well be just as offended by the perceived disrespect in a website that lacks information on accessibility as a person who is themselves disabled. For this very reason it makes no sense to say the ADA was intended to protect the dignity of those with disabilities in a way that is disconnected from their access to goods, services and facilities. Surely, if Congress intended to make an implied assault on the dignity of a disabled person illegal it would have said so, rather than prohibiting discrimination in access to goods and services.
In addition, the notion that Laufer suffered a “dignitary injury” when she could not find accessibility information fails to consider the nature of the dignitary injury suffered by someone who is a victim of discrimination. The black tester in Havens was not merely lied to – he was lied to because of his race. Ms. Laufer, on the other hand, did not fail to get information because of her disability – she failed to get information because it was not there for anyone, disabled or not. The ADA has many aspects of affirmative action based on the idea that equality of access may require special treatment, but the justification is always equality of access. The fundamental rule is that those with and without disabilities must be treated equally, and it is no insult to the dignity of a person with a disability if they get equal treatment.³ Ms. Laufer never suffered an injury the ADA was intended to prevent and therefore lacks statutory standing. She certainly lacks constitutional standing as well, but a careful reading of Havens and the text of the ADA shows that the Court never has to get to the question of constitutional standing because Ms. Laufer was never a victim of the discrimination the ADA is intended to prevent.
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¹ A few places to start:
Stigmatic Injury, how the 11th Circuit got it wrong
Laufer v Looper – the death of tester standing
² We’ll assume our non-disabled website visitor is not looking because they have a disabled associate, but has a purely academic interest.
³ Ms. Laufer would not know that her dignity was under assault if she did not know that buried in the Code of Federal Regulations is a requirement for some kinds of accessibility information. Comparing Ms. Laufer’s situation to victims of intentional discrimination is an insult to those the ADA and other civil rights statutes were meant to protect.
August is (in Texas at least) the month of afternoon thunderstorms. It’s a good metaphor for running a business subject to the ADA or FHA. Everything’s sunny and warm one minute then suddenly the wind is blowing and you are soaking wet. But the plants need the rain, so as usual there’s good and bad in ADA and FHA developments.
“Short sharp shock” is too good a phrase not to re-use, as proved by the fact that after its first use by Mary I of England to describe her hope that burning a few protestants would bring others back into the fold and its popularization by Gilbert and Sullivan it turned up in a song by Pink Floyd and as the title of Michelle Shocked’s first album. My use probably won’t get added to the Wikipedia page on the phrase (7) but it suits a discussion of braille gift card litigation and the effect of TransUnion v. Ramirez in ADA litigation.
Can the 11th Circuit hold back the tide as King Cnut famously failed to do?² In Laufer v. Arpan LLC, 2022 WL 906511 (11th Cir. Mar. 29, 2022) the 11th Circuit disagreed with the Fifth, Tenth and Second Circuits concerning the injury sufficient to satisfy the standing requirements in Article III of the Constitution. If the case goes to the Supreme Court the 11th Circuit is likely to get its feet wet on Article III standing, but of more interest is the Court’s failure to consider whether the plaintiff had even suffered a statutory injury; that is, did she suffer the kind of injury Title III of the ADA was intended to prevent? If there was no statutory injury then the question of constitutional injury never arises.