Now that everyone (and I mean everyone¹ ) has weighed in on tester standing as presented to the Supreme Court in Acheson Hotels v Laufer I thought I might as well try to explain the issue for those who don’t live and breathe disabilities rights litigation.
In my next blog I’ll look at the legal arguments about tester standing, but first I want to talk about a more practical question. Why did this case generate 16 amicus briefs filed by a total of 47 organizations? The legal questions are fascinating, but the intense interest in the case has nothing to do with those questions. It stems instead from the way tester standing has developed since the 1960’s from being a useful tool to root out discrimination into the fuel driving a new kind of industrial litigation in the 1990’s.
To start at the beginning, “tester standing” is the shorthand description of individuals who seek out discrimination so they can enforce the civil rights laws. There is no question that the government can enforce its laws – that’s what the Department of Justice does. Congress however believed that to get rid of discrimination would require more lawsuits than the DOJ had time and resources to file, so it created private rights of action under those laws, turning enforcement over to the private sector. Testing is done by individuals and organizations that enlisted in what Congress called an “army of private attorneys’ general” to enforce the civil rights laws.
Of course there were victims who got drafted into this army because they couldn’t rent the apartment they wanted or get the job the deserved. Unfortunately, individuals of the kind who certainly suffer from discrimination cannot be relied upon to file a lawsuit, especially when, as is the case with the ADA, there is nothing in it for them. In addition, relying on random acts of discrimination to generate enforcement actions might not result in rational enforcement, especially when the discrimination is subtle. You can’t fight an effective war against discrimination relying on the individual choices of victims of discrimination.
The solution, developed long before any disability rights laws were passed, was the use of mercenaries, more politely called testers². Testers would go out and pretend to be interested in buying or renting or patronizing a business to see how they were treated. In the pre-disability rights era this typically meant seeing whether a white tester and a Black or Hispanic tester were treated differently. By the time the ADA and FHA were passed in the late 1980’s and early 1990’s testing was very widely used by civil rights organizations to find and prosecute discriminatory conduct and had the imprimatur of the Supreme Court in the Havens case.³
Any tool that can be used can also, it turns out, be misused. Very soon after the ADA was passed lawyers realized that testing represented a great opportunity to generate lawsuits and legal fees. Why wait for someone to get hit by a car or slip on a spilled carton of milk at Walmart when you could simply persuade a disabled plaintiff to look for litigation as a tester? As a bonus the ADA and FHA included a unique kind of no-fault discrimination; the failure to design and build housing or business establishments to a set of complex design standards. And the FHA disability discrimination provisions included a right to accommodation that required only being treated badly, regardless of whether others were treated badly. Testers no longer needed to go out in pairs looking to be treated differently. Instead, a single disabled tester could drive around looking for a lack of accessible parking or similar obvious design/build violations and then file suit. In the FHA context they could just call landlords, ask a few questions, and hope for a wrong answer. After the Department of Justice announced that it believed the ADA covered the internet testing became even easier. There was no need to drive anywhere or even make a phone call – a disabled tester could roam the internet looking for inaccessible websites from the comfort of their living room.
Tester standing was not a fan favorite of businesses before the ADA and FHA disability rights provisions were passed, but after Havens there wasn’t a huge effort to oppose it. After all, it is hard to be against a system that generates a relatively small number of lawsuits against obvious racists, which is what most testing did. Disability rights testing, on the other hand, soon generated a lot of criticism. The design/build requirements are not always obvious and liability does not depend on fault. In fact, for the internet there are still no legal standards so even a business that wants to have an accessible website doesn’t know exactly what the law requires. The people getting sued under the disability rights provisions of the ADA and FHA were not evil; they were negligent. More important, traditional testing was relatively time consuming and expensive, so the number of lawsuits generated was relatively small. ADA testing was quick and cheap – a single plaintiff could generate a dozen lawsuits a day. The only limit on quantity was what the lawyer could afford to pay in filing fees.
Industrial scale litigation of the kind practiced by ADA litigation specialists was obviously problematic. While the lawyers portrayed themselves as advocates for the disabled they very often just took the money and ran, making no effort to make sure the problem that triggered the lawsuit was ever fixed. Also, because the litigation model involved settling for a small enough amount that a defense was senseless, ADA plaintiffs filed suit over trivial technical violations of the design standards that made little or no difference to the disabled.
That brings us back to the intense interest in Acheson Hotels. The Appellee, Deborah Laufer, is not an attractive litigant. She has filed thousands of lawsuits against hotels she never plans to visit for the profit of her lawyers and very likely herself. She even abandoned this lawsuit when she feared she might lose, hoping to preserve her right to sue in the different courts that have allowed her to file suit. Unfortunately, this unattractive plaintiff is the standard bearer for tester standing, on which the civil rights community relies for its legitimate efforts to combat real discrimination.(4) The amicus briefs reflect on one side the business community’s concern with the amounts of money being spent on litigation of no obvious merit and, on the other, the concern of the civil rights community that it may lose a very effective tool simply because a group of mostly unscrupulous lawyers are abusing tester standing for their own profit.
However, just as the rain falls on the just and unjust alike, the legal principles that govern tester standing do not take into account whether it is used for the public good or misused for private profit. In my next blog I’ll look at those legal arguments.
¹ The following is a list of the parties who have filed amicus briefs in Acheson Hotels, LLC v. Laufer. The United States represents every citizen, so “everybody” is literally true.
For Petitioner Acheson Hotels
- Retail Litigation Center, Inc.
- National Retail Federation
- Chamber Of Commerce of The United States of America
- American Resort Development Association
- American Bankers Association
- Atlantic Legal Foundation
- DRI Center for Law and Public Policy
- Restaurant Law Center
- American Hotel & Lodging Association
- National Federation of Independent Business Small Business Legal Center, Inc.
- RI Hospitality Association
- Puerto Rico Restaurant Association/Asociación De Restaurantes De Puerto Rico
- New Hampshire Lodging & Restaurant Association
- Massachusetts Restaurant Association
- Hospitality Maine
- Center for Constitutional Responsibility
- Buckeye Institute
- Maine Policy Institute
- Job Creators Network Foundation
- National Real Estate Investors Association,
- Ohio Hotel and Lodging Association
- National Association of Home Builders of the United States
For neither party
United States of America
For Respondent Deborah Laufer
- American Civil Liberties Union Foundation
- American Civil Liberties Union Foundation of Maine
- National Women’s Law Center
- Impact Fund
- Lawyers Committee for Civil Rights Under Law
- Lambda Legal Defense and Education Fund
- Howard University School of Law Civil Rights Clinic
- Constitutional Accountability Center
- National Fair Housing Alliance and it 50 member organizations
- Antidiscrimination Law Scholars
- Public Citizen
- The District Of Columbia
- New Jersey
- New York
- Philip L Schuler, Jenny Rodriquez-Fee and Michael M. Epstein in ass’n with Amicus Project at Southwestern Law School
- Disability Rights Education and Defense Fund
² I should emphasize that many testers are volunteers working for legitimate civil rights organizations, including those who filed amicus briefs. They are mercenaries only in the sense that they signed up for the fight. This is not true, however, of many of the “testers” who file industrial scale lawsuits of the kind I discuss in this blog. Tester standing makes allies of the purely noble and the purely greedy.
³ I have had a thing or two to say about Havens. See, among others, ADA serial litigation – will the Supreme Court cut off the head of this snake?
(4) The division between the legitimate and (in my view) illegitimate uses of the ADA and FHA is not as black and white as this makes it seem. Many legitimate civil rights organizations believe there is no such thing as a bad tester or a misuse of the ADA and FHA. In their view all discrimination is intentional and evil and those who fail to maintain a 2% or less slope in accessible parking are no different than the landlord who refuses to rent to blacks.