Construction Worker Using A LevelMost lawsuits brought under the ADA are brought by “testers” that is, individuals whose primary motivation is not to take advantage of particular goods and services, but rather to discover whether a particular facility complies with the ADA. This fact offends many defendants, and seems to defy the constitutional requirement that the plaintiff have suffered an actual injury. As a result, motions to dismiss that are based on the plaintiff being a tester are common. It took me very little time to find four decisions in 2013 that discuss tester standing, and more than 10 in 2012. In some of these cases the complaint was dismissed for lack of standing, but not in all. While some defendants raise the “tester” argument as if it were a generic fault, in fact its application requires careful analysis because ADA claims require not only a past injury, but also a likely future injury.

The first requirement for constitutional standing is that the plaintiff has suffered an actual injury. The argument against tester standing here is simple. If the plaintiff only went to the facility to look for ADA violations and had no intent to use the facility then the plaintiff was not injured by reason of his or her disability. The Tenth Circuit took up this issue in a Title II case, Tandy v. City of Wichita, 380 F.3d 1277 (10th Cir. 2004) and rejected it. After looking at tester cases under other anti-discrimination statutes the Court concluded that Title II was intended to grant standing to the limits of the Constitution, and that testers were therefore covered.

The “limits of the Constitution” rationale does not, of course, address the actual injury requirement for a tester. The earlier cases cited by the Court relied on specific provisions of the statutes that would apply even to a tester: for example, the provision in the FHA making it a violation to misrepresent the availability of a dwelling. The misrepresentation would be a violation even if the tester had no intent to buy or rent the dwelling. See, Havens Realty Corp. v. Coleman, 455 U.S. 363, 365, 102 S. Ct. 1114, 1117 (1982). Under Title II (and Title III) the corresponding provisions are those that forbid discrimination generally without specifically requiring an inability to use goods or services. 42 U.S.C. §12132 (Title II) and 42 U.S.C. §§12182(b)(2) and 12183. While §12182(a) of Title III defines discrimination in terms of being denied the “full and equal enjoyment of goods and services” later definitions include no suggestion that actual intent to use the goods and services is required. One of the peculiarities of the ADA is that it frequently defines discrimination in terms of a failure by the defendant to do something without requiring that the failure cause any harm. It appears most courts agree that merely of the existence of an ADA constitutes the initial injury required by the ADA.

Of course ADA standing has a second component, the necessity of a likely return so that the injury to the plaintiff is redressible. This is where tester status has created the most discussion. Although courts disagree on how strict the analysis of likely return should be, it seems clear that whether the plaintiff is a tester has some bearing on the credibility of claim that the plaintiff will return. Nat’l Alliance for Accessibility, Inc. v. Big Lots Stores, Inc., 2012 WL 1440226 (M.D.N.C. 2012) represents one extreme. In Big Lots the Court found that the plaintiff’s “admitted status as a tester” was a factor leading it to conclude her claims of an intent to return were not plausible. The other end of the spectrum is found in Betancourt v. Federated Dept. Stores, 732 F. Supp. 2d 693, 704 (W.D. Tex. 2010) which cites with apparent approval the argument that testers are more likely to return precisely because they are in the business of testing for ADA compliance.

For defendants, the best argument concerning testers is found in Kramer v. Midamco, 656 F. Supp. 2d 740, 750 (N.D. Ohio 2009). In that case the Court argued that a tester was not likely to return to a remediated property because a tester would only want to return to check on continuing violations. An injury can be redressed only if the plaintiff will take advantage of the relief granted, and a plaintiff who only cares about violations will never care to visit a property that is known to be in compliance.

The majority position on intent to return is found in Payne v. Sears, Roebuck & Co., 2012 WL 1965389 (E.D.N.C. May 31, 2012). This case treats the plaintiff’s tester status as essentially irrelevant. It is not sufficient to confer standing, but neither does it defeat standing. Even a tester plaintiff must establish a likelihood of return based on factors other than being a tester. This is a majority position in part because this particular plaintiff has filed hundreds of lawsuits, and they are frequently dismissed on standing grounds, but other courts with other plaintiffs have adopted the same reasoning.

There is plenty for defendants to think about in these cases. Tandy v City of Wichita does not clearly express the argument made above, and in the absence of authority from other Courts of Appeal I think the argument that a tester has not suffered any injury at all may still be available. This is especially true for plaintiffs who simply look at violations that are visible from the street or a parking lot without any intent to patronize the facility. Although Kramer is appealing, the argument in Payne v. Sears, Roebuck & Co. that “tester” status is essentially irrelevant is the prevailing law. In any case, defendants need to carefully distinguish between the two standing requirements; that is, that the plaintiff has actually suffered from discrimination in the past and that the plaintiff’s claim is redressible because the plaintiff intends to return if the facility is remediated.