Do “Testers” Have Standing to Sue? An Analysis of the Circuit Split Regarding ADA Compliance of Hotel Reservation Websites

by Kathyrn McIlroy, Associate Member, University of Cincinnati Law Review Vol. 91

I. Introduction

Title III of the Americans with Disabilities Act (“ADA”) prohibits discrimination on the basis of disability in places of public accommodation.¹ Further, it provides that it is discriminatory to deny participation, provide an unequal benefit of participation, or provide a separate benefit to individuals based on disability.² Lodging accommodations, including hotels, are considered places of public accommodation, subject to particular federal regulations (hereinafter “Hotel Reservation Regulations”).³ As such, hotels are required to ensure that their reservation system allows individuals with disabilities to make reservations for “accessible guest rooms during the same hours and in the same manner as individuals who do not need accessible rooms.”⁴ This applies to “reservations made by any means, including by telephone, in-person, or through a third party.”⁵

Before a person can bring a lawsuit, they must have proper standing to sue under Article III of the United States Constitution.⁶ The Supreme Court of the United States has created a three-step test that a plaintiff must satisfy to have the requisite standing to sue: (1) the plaintiff must have suffered an “injury in fact”- an injury that is concrete and actual rather than hypothetical; (2) the plaintiff must prove that there is a causal connection between the injury and the conduct of which they are complaining; and (3) it must be likely that a favorable outcome for the plaintiff will redress such injury.⁷ In cases where the plaintiff is also seeking injunctive relief, the plaintiff must show that without granting such relief, they will be harmed again.⁸ In cases where a “tester” is involved, the Supreme Court has held that standing via an “injury in fact” is satisfied when the information or lack of information provided has relevance to the tester.⁹

This article explores the circuit split on whether a “tester” of hotel websites for ADA compliance has standing to sue when the hotel website violates the federal law. Part II provides background on the claim, and the decisions out of the First, Fourth, and Eleventh Circuits, which have held that such a person does having standing to sue. Part II also provides background on the Second, Fifth, and Tenth Circuit decisions, which have held that such a person does not have standing to sue. Part III discusses the implications of the circuit split not only on testers of hotel websites but also on testers or visitors of any place of public accommodation. Finally, Part IV concludes by advocating for the First, Fourth, and Eleventh Circuit decisions to be adopted by future courts or the Supreme Court of the United States.

II. Background

A. The Claim

In five of the six decisions by United States Courts of Appeal, the same plaintiff, Deborah Laufer, brought the original action against different hotels throughout the United States.¹⁰ In the remaining decision, a similarly situated plaintiff, Owen Harty, brought the original action.¹¹ While the specific facts of each case differ slightly, the most recent decision by the Fourth Circuit provides a good overview of Laufer and Harty’s overall claim.

According to the facts in Laufer v. Naranda Hotels, Laufer requires assistive devices to help her walk, which qualifies her as an individual with a disability under the ADA.¹² When Laufer visits a hotel, she has several accessibility needs related to parking spaces, passageways, and operating mechanisms.¹³ As an advocate for the rights of all disabled individuals, Laufer is a “tester” of places of public accommodation and their websites to ensure compliance with the ADA.¹⁴ Laufer contends that the requirement that hotel reservation systems allow for accommodation requests extends to reservations made by website, either directly through the hotel’s website or through a third party website.¹⁵

In this case, Laufer visited, on five separate days, several third party hotel reservation websites for Naranda’s Sleep Inn & Suites Downtown Inner Harbor.¹⁶ The visits were for “reviewing and assessing the accessible features at the [hotel] and ascertain[ing] whether they meet the requirements of [the Hotel Reservation Regulations] and [Laufer’s] accessibility needs.”¹⁷ Laufer discovered that none of the websites she tested complied with such requirement.¹⁸ As such, she brought action against Naranda Hotels.¹⁹ On appeal before the Fourth Circuit, the question then became whether Laufer had standing to sue as just a “tester” of the website rather than utilizing the website to book an immediate stay, and whether injunctive relief should be granted.²⁰ This question was previously before the First, Second, Fifth, Tenth, and Eleventh Circuits, and a circuit split exists as a result.

B. First, Fourth, and Eleventh Circuits

In Laufer v. Naranda Hotels, the Fourth Circuit joined the First and Eleventh Circuits in holding that Laufer had Article III standing to sue.²¹ Of these circuits, the Eleventh Circuit first considered the issue in Laufer v. Arpan.²² In Arpan, the Eleventh Circuit focused on the idea that an “injury in fact” can be either tangible or intangible so long as it is real and concrete.²³ In deciding that Laufer’s injury was intangible, it also found that the injury was indeed concrete enough to satisfy the first standing element.²⁴ The Eleventh Circuit reasoned that Laufer not only claimed that she suffered illegal discrimination but also that such discrimination resulted in “frustrations and humiliation” and a “sense of isolation and segregation.”²⁵ The Eleventh Circuit stated, “[B]ecause her emotional injury is her emotional injury, it affects her ‘in a personal and individual way’ and is therefore sufficiently particularized.”²⁶ Further, because she was frustrated and humiliated, the other elements for standing to sue were satisfied, as well as the requirement for injunctive relief that an imminent future injury may occur.²⁷

Several months later, the First Circuit was presented with this question in Laufer v. Acheson Hotels.²⁸ The First Circuit relied on a series of Supreme Court decisions to conclude that Laufer suffered an intangible injury that was real and concrete because she had a right to information on the hotel reservation website via federal law that she was not provided, and that the denial of such information constitutes information discrimination against disabled individuals.²⁹ Even though Laufer had no intentions to use the information immediately to book a stay at the hotel, she was still injured in the way that violates protections provided by the ADA and Hotel Reservation Regulations.³⁰ Regarding the request for injunctive relief, the First Circuit found that future injury to Laufer was sufficiently imminent because she consistently monitors hotel websites as part of her role as a tester.³¹

The Fourth Circuit, in Laufer v. Naranda Hotels, also decided Laufer had proper standing to sue and to seek injunctive relief.³² The Fourth Circuit found that Laufer suffered an informational injury in fact because she was not provided with the information she should have been on the hotel websites.³³ As a result, the second and third elements for standing were also satisfied.³⁴ Regarding her injunctive relief claim, the Fourth Circuit agreed with the First Circuit’s reasoning that because Laufer consistently tests hotel websites, it is likely that she will be injured again.³⁵

C. Second, Fifth, and Tenth Circuits

The Fifth Circuit was the first to consider this question in Laufer v. Mann Hospitality.³⁶ There, the Fifth Circuit decided that Laufer did not satisfy the first element for standing as she did not suffer a concrete injury.³⁷ The Fifth Circuit reasoned that because Laufer only visited the hotel website to test for ADA compliance with no intentions of booking a stay, she failed to establish an injury in fact.³⁸ Further, the Fifth Circuit rejected Laufer’s argument that she suffered an informational injury because the lack of required information on the hotel website was not of enough “relevance” to her.³⁹ Thus, the Fifth Circuit ruled against Laufer on standing, and as a result did not consider the question of injunctive relief.⁴⁰

The Tenth Circuit assessed Laufer’s claim in Laufer v. Looper.⁴¹ Similar to the Fifth Circuit, the Tenth Circuit found that Laufer did not suffer a concrete injury in fact because she had no concrete plans to actually book a stay at the hotel via the website she was testing.⁴² Further, her claim of informational injury was also insufficient because she had no intentions of using the information.⁴³ The Fifth Circuit emphasized that Laufer’s role as a tester was insufficient on its own to satisfy standing despite the Supreme Court’s decision in Havens Realty Corp. v. Coleman, which held that a tester had suffered an injury when there was unlawful misrepresentation under the Fair Housing Act (“FHA”).⁴⁴ The difference, the Tenth Circuit held, is that Laufer was not given false information nor did she contend that she was denied information.⁴⁵ Further, Laufer was not misrepresented because she was given the same information that everyone else who visited the website was given.⁴⁶

The Second Circuit considered this question in the context of a different plaintiff in Harty v. West Point Reality, though the facts are similar to the cases involving Laufer.⁴⁷ There, the Second Circuit found that the tester, Harty, did not have Article III standing to sue because he was not using the website to plan for future travel––thus, he cannot allege that his ability to travel was hampered.⁴⁸ Even though Harty planned to utilize the website to reserve a room “in the near future,” the Second Circuit held that was not enough to sufficiently satisfy an injury in fact.⁴⁹ In regard to Harty’s claim of informational injury, the Second Circuit held that Harty was required to show that he had an interest in the information beyond bringing a lawsuit, and Harty failed to do so.⁵⁰ As a result, like the Fifth and Tenth Circuits, the Second Circuit ruled against the tester on Article III standing grounds.⁵¹

III. Discussion

The main challenge for Laufer and Harty’s claims surrounds whether testers of hotel websites who have no intentions of booking a stay have Article III standing based on the Supreme Court’s holding in Havens Realty Corp. v. Coleman.⁵² Further, the challenge involves how the testers are utilizing the information provided (or lack of information provided) on the websites if it is not to make a reservation.⁵³ The circuits holding for Laufer (and presumably for Harty if his case were before them) correctly indicate that these hotel website testers have indeed suffered an informational injury based on Havens Realty Corp. v. Coleman because individuals with disabilities are entitled to accessibility information on the websites.⁵⁴ The circuits holding against Laufer and Harty fail to consider that the ADA and Hotel Reservation Regulations do not require a booked reservation or planned booked reservation before their governance of hotel websites kicks in.⁵⁵

The ADA and the Hotel Reservation Regulations explicitly require hotels to provide on their reservation systems information about accessibility when booking a reservation.⁵⁶ Because there is unequal access to information depending on one’s disability, or lack thereof, it is discriminatory under the ADA.⁵⁷ As a result, testers are suffering an injury in fact.⁵⁸ Because an injury can be intangible to satisfy the first standing element,⁵⁹ it does not matter that Laufer and Harty had no immediate intentions to visit the hotels.

Further, testers such as Laufer and Harty, in testing contexts separate from the ADA, will suffer further harm and injury for purposes of injunctive relief because part of their role as a tester is to continuously visit the websites to test for compliance.⁶⁰ If it were not for testers such as Laufer and Harty, future visitors to the website that require information about accessibility and accommodations to book an immediate reservation will be unquestionably injured by a violation of the ADA and Hotel Reservation Regulations.⁶¹ Thus, Laufer and Harty are suffering informational injuries and filing actions in order to prevent similarly situated individuals from suffering even more harm in the future.

Testers, of ADA compliance and in general, conduct their tests to ensure that laws are not being violated.⁶² In the context of the ADA, the federal law exists to hold places of public accommodation accountable in providing equal access to their premises despite disability status.⁶³ While places of public accommodation should be inclusive on their own and without monitoring by a tester, a tester serves the vital purpose of making sure such places are not violating federal law. This is important in many contexts, but especially in areas in which discriminatory practices are being conducted on the basis of disability.

IV. Conclusion

This circuit split is relatively new with the earliest decision coming from the Fifth Circuit in 2021⁶⁴ and the latest decision coming from the Fourth Circuit in early 2023.⁶⁵ However, with six circuits considering this question in less than two years, it could be time for the Supreme Court to expand upon their holding in Havens Realty Corp. v. Coleman to guide future courts in determining standing to sue for all testers, not just those of the FHA and ADA.⁶⁶ Upon such reconsideration, either in the nation’s highest court or other courts throughout the United States, the decisions of the First, Fourth, and Eleventh Circuits should be adopted because testers of hotel websites for ADA and Hotel Reservation Regulations compliance do suffer from an injury in fact when the reservation website fails to provide proper accommodations information.⁶⁷ Without such testers, hotels, or other places of public accommodation, are essentially free to violate federal law until a person seeking accommodations visits the reservation website to book a stay.⁶⁸ The testers are ensuring that these hotels are not conducting such violations, which are easily avoidable by being inclusive.⁶⁹

Cover Photo by Glenn Carstens-Peters on Unsplash

Katie McIlroy

During her undergraduate studies, Katie McIlroy received a degree in Economics and Political Science from Marietta College with a minor in Leadership Studies. Katie is currently interested in pursuing a career in civil litigation following law school. Katie enjoyed working as an Associate Member of the Law Review during her second year and is excited to work as a Citations Editor in her final year of law school.

References

1
42 U.S.C. § 12182(a).
2
Id. at §§ 12182(b)(1)(A)(i)-(iii).
3
28 C.F.R. § 36.302(e)(1).
4
Id. at § 36.302(e)(1)(ii).
5
Id. at § 36.302(e)(1).
6
Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 161 (4th Cir. 2023); U.S. Const. art. III, § 2.
7
Laufer, 60 F.4th at 161.
8
Id.
9
Havens Realty Corp. v. Coleman, 455 U.S. 363, 373 (1982).
10
Laufer, 60 F.4th at 162. Those decisions arose out of the First, Fourth, Fifth, Tenth, and Eleventh Circuits.
11
Id. This decision arose out of the Second Circuit.
12
Id. at 158.
13
Id. at 158-59.
14
Id. at 159.
15
Id. at 159-60.
16
Id. at 160.
17
Id.
18
Id.
19
Id.
20
Id. at 160-61.
21
Laufer v. Arpan, LLC, 29 F.4th 1268 (11th Cir. 2022).
22
Laufer v. Arpan, LLC, 29 F.4th 1268 (11th Cir. 2022).
23
Id. at 1272.
24
Id. at 1273.
25
Id. at 1274.
26
Id. at 1275.
27
Id.
28
Laufer v. Acheson Hotels, LLC, 50 F.4th 259 (1st Cir. 2022).
29
Id. at 271.
30
Id.
31
Id. at 277.
32
Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 174 (4th Cir. 2023).
33
Id. at 166.
34
Id.
35
Id. at 167.
36
Laufer v. Mann Hospitality, LLC, 996 F.3d 269 (5th Cir. 2021).
37
Id. at 272.
38
Id.
39
Id. at 273.
40
Id. at 274.
41
Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022).
42
Id. at 878.
43
Id. at 881.
44
Id. at 878-79.
45
Id.
46
Id.
47
Harty v. West Point Realty, Inc., 28 F.4th 435 (2d Cir. 2022).
48
Id. at 443.
49
Id.
50
Id.
51
Id. at 445.
52
See Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 166 (4th Cir. 2023).
53
Id.
54
See Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 166 (4th Cir. 2023).
55
See discussion supra Part I.
56
See discussion supra Part I.
57
See 42 U.S.C. §§ 12182(b)(1)(A)(i)-(iii).
58
See supra Part II, Subpart B.
59
Laufer v. Arpan, LLC, 29 F.4th 1268, 1272 (11th Cir. 2022).
60
See discussion supra Part II.
61
See discussion supra Part I.
62
See discussion supra Part II.
63
See discussion supra Part I.
64
Laufer v. Mann Hospitality, LLC, 996 F.3d 269 (5th Cir. 2021).
65
Laufer v. Naranda Hotels, LLC, 60 F.4th 156, 161 (4th Cir. 2023).
66
As of March 27, 2023, the United States Supreme Court granted certiorari to hear Acheson Hotels, LLC v. Laufer, which originated in the First Circuit and ruled in favor of Laufer. Devan Cole, Supreme Court Takes Up Case Concerning Americans with Disabilities Act ‘Tester’ of Hotels, CNN (Mar. 27, 2023, 11:24 AM), https://www.cnn.com/2023/03/27/politics/supreme-court-americans-with-disabilities-act-tester-case-maine/index.html.
67
See discussion supra Part III.
68
Id.
69
Id.