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Litigation News

Summer 2023, Vol. 48, No. 4

Do Online Disabled Testers Have Standing to Sue?

Frances Codd Slusarz


  • SCOTUS to resolve circuit split on standing for informational injury.
  • Even a person with no plans to travel has standing to bring a claim against a hotel for discrimination in public accommodations.
  • Relying on tester cases involving racial discrimination under the Fair Housing Act, a federal appellate court held informational harm of not finding accessibility information was sufficient to establish a justiciable injury.
Do Online Disabled Testers Have Standing to Sue?

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Even a person with no plans to travel has standing to bring a claim against a hotel for discrimination in public accommodations in violation of Title III of the Americans with Disabilities Act (ADA). Relying on tester cases involving racial discrimination under the Fair Housing Act, a federal appellate court held the informational harm of not finding accessibility information on the hotel booking website was sufficient to establish that the plaintiff suffered a justiciable injury.

In Laufer v. Naranda Hotels, LLC, the plaintiff sued the defendant hotel for discrimination under Title III of the ADA. The U.S. District Court for the District of Maryland dismissed the claim for lack of standing. The plaintiff appealed to the U.S. Court of Appeals for the Fourth Circuit, which reversed and remanded.

The Fourth Circuit joined the First and Eleventh Circuits in finding that an informational injury establishes a real case or controversy such that federal courts can exercise jurisdiction pursuant to Article III, Section 2 of the U.S. Constitution. Those decisions stand in opposition to the Second, Fifth, and Tenth Circuits, which found the plaintiffs must demonstrate an intention to book lodgings to establish standing to sue.

The U.S. Supreme Court granted a writ of certiorari in the case before the First Circuit, Laufer v. Acheson Hotels, LLC, to resolve the question of whether an informational injury is sufficient to establish standing for a discrimination claim under Title III of the ADA. ABA Litigation Section leaders expect the Court to find that informational harm is sufficient to establish standing under Article III.

Hotel Reservation Regulations at Center of Cases

Title III of the ADA states that “[n]o individual shall be discriminated against 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 accommodations[.]” Central to each of the cases are the ADA regulations concerning hotel reservations.

The hotel reservation regulations specify that hotels must provide sufficient information to permit disabled persons to determine whether the hotel accommodations would satisfy their needs and require that persons with disabilities be able to make reservations in the same manner and at the same times as non-disabled persons. For example, if nondisabled persons can make hotel reservations online and 24 hours per day, websites must have sufficient information and capabilities for disabled persons to book appropriately accessible guestrooms online and 24 hours per day.

Plaintiff Brings Hundreds of Cases Across United States

The plaintiff, an ADA compliance “tester,” is a person with disabilities who visits hotel booking sites to check whether they comply with Title III of the ADA. If the websites do not comply, she sues them. She has initiated hundreds of lawsuits across the country on this issue.

In the Maryland District Court and before the Fourth Circuit, the defendant argued that the plaintiff lacked standing to pursue her claims because she did not allege any travel plans that would require her to book a hotel room in Maryland. The district court held an evidentiary hearing on this issue and found the plaintiff’s testimony to be inconsistent and unbelievable. It dismissed the action for lack of Article III standing. The plaintiff appealed.

Informational Injury Cases Are Backbone of Fourth Circuit’s Decision

The Fourth Circuit reversed the district court’s ruling. In finding for the plaintiff, the appellate court relied on a line of informational injury cases decided by the U.S. Supreme Court, beginning with Havens Realty Corp. v. Coleman. In Havens Realty, the Court addressed the question of whether a black tester, who posed as a potential renter or buyer, had standing to bring a discrimination claim under the Fair Housing Act of 1968 against a real estate company that lied about the availability of rental units and houses. The tester was not actually looking for housing but merely posed as if she were a buyer to test whether the defendant gave her the same information that it gave a white buyer.

The Court noted that the Fair Housing Act made it unlawful for a person “to represent to any person because of race, color, religion, sex, or national origin that a dwelling is not available for inspection, sale, or rental when such dwelling is in fact so available.” The language of the statute conferred on all persons a right to truthful information concerning housing, so the black tester was entitled to truthful information regardless of her intended use of the information. The black tester suffered an injury in fact—not receiving truthful information—and, therefore, Article III was satisfied.

The two other cases in this line, Public Citizen v. U.S. Department of Justice and Federal Election Commission v. Akins, also concerned public access to statutorily required information. In Public Citizen, the Court found standing where a Freedom of Information Act request was submitted and the plaintiffs were denied access to specific agency records. In Akins, the Court noted “that a plaintiff suffers an ‘injury in fact’ when the plaintiff fails to obtain information which must be publicly disclosed pursuant to statute.” Critically, even though the plaintiffs in both Public Citizen and Akins had an intended use for the information they were denied, the Court’s ruling depended only on the fact that the plaintiffs sought information to which they claimed an entitlement and were denied it. Their intended uses were irrelevant to the question of standing.

With Havens Realty and its progeny as precedent, the Fourth Circuit found that the plaintiff suffered an injury in fact when she visited the defendant’s booking website and it lacked the information and capabilities required by the hotel reservation regulations. The website did not provide information about accessibility at the property, and the plaintiff was not able to book an accessible guestroom online.

Second, Fifth, and Tenth Circuits Reach Contrary Decisions

In contrast, the Second, Fifth, and Tenth Circuits looked at the intended uses of the information the testers were denied on the websites. Specifically, the Second Circuit concluded that the Court’s decision in TransUnion LLC v. Ramirez was controlling precedent, and, therefore, the plaintiff could not establish an informational injury without an intention to book a hotel room. The Fourth Circuit distinguished TransUnion, however, because it did not involve a failure to provide statutorily required information. Rather, in TransUnion, the plaintiff received the information but in the incorrect format. Distinguishing Public Citizen and Atkins, the Court determined that the lack of downstream consequences for the plaintiff meant the plaintiff had not suffered an injury.

The Fifth Circuit declared that standing required that the information had relevance to the tester, and the Tenth Circuit ruled that the plaintiff had to have a use for the information. The Fourth Circuit rejected both analyses as requiring the plaintiffs to allege additional harm over that which the Court required in the Havens Realty line of cases.

Likelihood Supreme Court Will Find Standing

Litigation Section leaders are guardedly optimistic that the Court will find that the information injury suffered by ADA testers is sufficient to establish standing to sue. “In the past two years, all justices (with the exception of Justice Jackson, who had not yet joined the Court), in majority or dissent, have relied upon the holding in Havens Realty,” explains Katayoun Donnelly, Denver, CO, cochair of the Pro Bono & Professional Opportunities Subcommittee of the Section’s Appellate Practice Committee. “I would expect them to do the same here.”

“This Court has not been particularly friendly to plaintiffs, and this Court has really tightened up its standing doctrine to make it more difficult to establish standing,” cautions Cassandra Burke Robertson, Cleveland, OH, chair of the Appellate Subcommittee of the Section’s Civil Rights Litigation Committee. “Nevertheless, there is strong precedent for the idea of the informational injury, and the Court has not overruled Havens Realty.”

If the Supreme Court finds against standing, Congress “could put real teeth into public enforcement of Title III of the ADA,” asserts Robertson. If activists are no longer able to ensure compliance through the use of testers, “the alternative would be to create a governmental compliance regime, with fines for noncompliance.”