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“Testing” the ADA: Who Has the Right?

The Court will decide whether watchdog “testers” can help enforce compliance with the ADA.

spinner image Americans with Disabilities Act Case

Acheson Hotels, LLC v. Laufer,

No. 22-429,

50 F.4th 259 (1st Cir. 2022),

cert. granted, 143 S. Ct. 1053 (2023).

Oral argument scheduled for Oct. 4, 2023.

Issues: Whether a plaintiff can have “tester” standing under Article III of the U.S. Constitution when she alleges that the website of a place of accommodation violates the Americans with Disabilities Act accessibility requirements, even though she has no intention of visiting that place.

Title III of the Americans with Disabilities Act (“ADA”) mandates that “places of public accommodation,” like restaurants and hotels, must provide “reasonable accommodations” for people with disabilities. The U.S. Attorney General has promulgated various regulations giving force to this provision, including the “Reservation Rule.” 28 C.F.R. § 36.302(e). This rule requires hotels to provide enough detail about the available accommodations so that people with disabilities can determine if the room will meet their individual accessibility needs. Id. If a place of public accommodation violates this regulation, the ADA allows individuals to sue in federal court. 42 U.S.C. § 12188(a); 28 C.F.R. § 36.501.

Deborah Laufer, the plaintiff in this case, has various mobility and visual impairments that require reasonable accommodations for her to stay at a hotel. Laufer v. Acheson Hotels, LLC, 50 F.4th 259, 263 (1st Cir. 2022). Defendant Acheson Hotels, LLC (“Acheson”) operates The Coast Village Inn and Cottages in Maine and accepts reservations for the inn on its own and other travel-related websites. Id. When Ms. Laufer visited Acheson’s website, she discovered that it did not identify accessible rooms, provide an option for booking an accessible room, or give her sufficient information to determine whether the rooms and features of the inn were accessible to her. Id. at 263-64.

Ms. Laufer is a self-proclaimed “tester,” or someone who visits places of public accommodation to evaluate their compliance with Title III of the ADA. Testers may raise claims of discrimination if they discover their failures to satisfy ADA requirements. Testers have long brought lawsuits under the ADA and other civil rights statutes. The Supreme Court validated tester standing in Havens Realty Corp. v. Coleman (“Havens”), which concerned the right of testers to initiate fair housing litigation challenging racial discrimination in housing that they did not intend to rent or buy themselves. 455 U.S. 363 (1982).

Ms. Laufer filed suit, alleging that Acheson violated the Reservation Rule. Laufer v. Acheson Hotels, LLC, No. 2:20-CV-00344-GZS, 2021 WL 1993555 (D. Me. May 18, 2021). The District Court dismissed Ms. Laufer’s lawsuit, holding that she lacked standing because she never had any intention of traveling to Maine or booking a room at the inn. Id. at *4. For this reason, the court held, she could not demonstrate the concrete, particularized, and imminent harm needed to satisfy federal court standing requirements.

On appeal, the First Circuit ruled in Ms. Laufer’s favor, reversing and remanding the District Court’s decision for further proceedings. Laufer, 50 F.4th at 278-79. The First Circuit, relying on Havens, held the informational injury allegedly caused by Acheson’s practices was adequately concrete, particularized, and imminent for her to have standing. Id. at 263, 277. The First Circuit noted that the Reservation Rule has never required a person with disabilities to intend to reserve a room to sue a public accommodation under the ADA, id. at 269, and that the alleged “sense of segregation and isolation” that Ms. Laufer suffered because of her informational injury was the kind of systemic exclusion that the ADA was designed to prevent. Id. at 274.

While the First Circuit’s ruling on this issue is in line with the Eleventh Circuit, it conflicts with decisions from the Second, Fifth, and Tenth Circuits. Id. at 263 n.1. Acheson argues that the Court’s decision in Trans-Union LLC v. Ramirez, 141 S. Ct. 2190 (2021), has effectively overruled Havens. Br. of Pet. at 11, Acheson v. Laufer, No. 22-429 (filed June 5, 2023). The United States has taken the position that Havens remains good law, but that the ADA is not as explicit as the Fair Housing Act in recognizing the type of informational harm Ms. Laufer alleges. See generally, Br. of amicus curiae United States in Supp. of Neither Party, No. 22-429 (filed June 12, 2023)

In July, Ms. Laufer filed a “suggestion of mootness” indicating she had withdrawn her complaint in the district court. Acheson urged the Court to hear the case anyway, to consider the standing issue with respect to third-party websites that had not come into compliance with the Reservation Rule. On August 10, the Court denied Laufer’s request, stating that the question of mootness “will be subject to further consideration at oral argument….”


Utilizing testers to ensure accessibility for all people with disabilities is one of the most effective strategies for enforcing Title III of the ADA. As of 2023, approximately 27% of adults in the United States have some type of disability. Older adults are especially likely to have disabilities, with more than 30% of adults over age 65, as well as more than 50% of those over age 75, currently having at least one disability. This relationship between age and disability can be explained, at least partially, by the fact that age-related health complications often generate new disabilities. As the U.S. population continues to age, disabilities will only become more prevalent.

Sam Gerleman


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