Document Type

Article

Publication Date

2023

Abstract

During its 2023–2024 term, the U.S. Supreme Court will decide a case with significant implications for the future of the Americans with Disabilities Act (ADA). In Acheson Hotels v. Laufer, the Court will determine whether a civil rights “tester” plaintiff has Article III standing to sue a hotel for failing to provide information about the hotel’s accessibility online — in violation of Department of Justice (DOJ) regulations applying the ADA’s requirement of “reasonable modifications in policies, practices, or procedures” — when the plaintiff did not intend to book a hotel reservation. Plaintiff-Respondent Deborah Laufer has not only challenged the failure of Acheson Hotels to provide required information, but has also filed over 600 similar lawsuits, showcasing system-wide violations of the ADA’s “Reservation Rule.”

The Reservation Rule (“the Rule”), promulgated in 2010, requires hotels to make accessibility information available “through [their] reservations service[s] in enough detail to reasonably permit individuals with disabilities to assess independently whether a given hotel or guest room meets his or her accessibility needs.” The Rule also requires hotels to deliver accessible rooms in the same manner and during the same hours as inaccessible rooms, to hold accessible rooms for individuals with disabilities, and to guarantee that an accessible room reservation is held for the reserving customer. Among the motivations for the Rule’s passage were widespread complaints related to accessibility in the hotel reservation process. During the Rule’s notice and comment period, which began in 2008, industry representatives advocated for language that required hotels to treat disabled individuals in “a substantially similar manner” to nondisabled guests; the Department did not accept this suggested language, and the Rule instead requires hotels to treat disabled individuals “in the same manner” as nondisabled individuals. Hotels had an 18-month transition period to implement the changes. The American Society of Travel Agents, Inc. (at the time “the world’s largest association of professional travel agencies”) filed a comment with the DOJ in support of “parity in reservations policies” and explained that, to achieve that goal, hotels are best positioned to provide accurate accessibility information.

Hotels’ noncompliance with Title III of the ADA, and with the Reservation Rule in particular, is pervasive, and tester plaintiffs play a key role in enforcing the law. The ADA’s enforcement scheme depends in large part on private lawsuits to compensate for the limited resources of its designated enforcement agency, the DOJ. The burdens of filing suit and obtaining injunctive relief, however, are significant for the individuals on whom the ADA relies, the very same individuals who rely on the Act for the opportunity to, as Jacobus tenBroek famously put it, “live in the world.” Because damages are unavailable for violations of the Rule, suits for injunctive relief need to be filed before a problem arises: Injunctive relief is relatively useless for those who are denied accessibility information about public accommodations. Any injunction would take effect long after the disabled traveler needed the accessibility information. These obstacles undermine the affirmative duty that the Reservation Rule places on businesses to acknowledge and account for disabled individuals before those individuals need to book their reservations. Tester litigation helps to secure the services proposed by the Reservation Rule and to deliver on the regulation’s promise of equal efficiency, immediacy, and convenience.

Disciplines

Disability Law | Law

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