ADA Round-Up: Supreme Court Drops ADA ‘Tester’ Case

Dec 20 2023 VITAC
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Welcome to the latest edition of “ADA in the News,” featuring recent updates and rulings regarding the Americans with Disabilities Act.

ADA ‘Tester’ Case Dismissed

The U.S. Supreme Court dismissed as moot a case that could have settled whether people who are “testing” hotels for compliance with ADA accessibility features have standing to sue if they don’t intend to actually stay at the hotel.

The plaintiff in the matter, Deborah Laufer, a self-described tester plaintiff, has filed more than 600 lawsuits against hotels she researched online. She has accused hotels – in this instance, the Coast Village Inn and Cottages in Maine, formerly owned by Acheson Hotels, LLC – of violating the Americans with Disabilities Act (ADA) by failing to include accessibility information on their reservation websites.

While some hotels have settled, others, like Acheson Hotels, argued that the plaintiff did not suffer any harm as she did not actually intend to stay at the hotels.

The Supreme Court justices earlier this month vacated judgment in the case and directed the U.S. Court of Appeals for the First Circuit to dismiss the case as moot in light of the plaintiff’s voluntary dismissal of the case due to the misconduct of an attorney with whom she has worked on other lawsuits.

The dismissal is disappointing for some businesses and attorneys who had been awaiting the Supreme Court’s decision on whether a “tester” plaintiff – a person with a disability who visits places of public accommodation to determine their compliance – has standing to sue a public accommodation under the ADA despite having no intention of ever visiting the business.

Though Laufer has said she has no intention of filing any more ADA tester suits, law firm Ballard Spahr writes that “the Supreme Court’s decision acknowledged that the issue of tester standing is still ‘very much alive.’ Federal district courts around the country remain bound by their respective Circuit Court’s precedent, and businesses across the country lack unified guidance as to whether they remain targets for serial-litigants. As such, this decision will likely not deter forum-shopping by future tester plaintiffs, who increasingly file lawsuits against industry entities who maintain an online presence, and who will continue to avoid unfavorable courts.”

Hospital emergency entrance sign

Hospital to Pay $35,000 to Settle ADA Complaint

A Rhode Island hospital will pay $35,000 in fines and adopt new ADA policies as part of a settlement agreement after a patient who is deaf alleged that the facility did not provide her with an effective means of communication.

The complainant, who uses American Sign Language as her primary means of communication, was a patient at Kent Hospital in December 2021. She alleged that the facility failed to provide her with effective communication until the seventh day of her hospitalization – after multiple requests by herself and a family member – causing her fear and confusion about her medical diagnosis and treatment.

Under the terms of the agreement, Kent Hospital will pay $30,000 to the complainant and a $5,000 penalty, adopt new ADA policies, and train staff on effective communication practices and securing qualified interpreters for patients.

Title III of the ADA prohibits discrimination against people with disabilities in places of public accommodations, such as hospitals. It requires places of public accommodation to provide the necessary auxiliary aids and services to ensure that communication is effective. Such aids and services can include American Sign Language interpreters for individuals who are deaf or hard of hearing and must be paid for by the place of public accommodation.

Tech Company Settles Accommodations Suit

A tech company has agreed to pay $150,000 to resolve a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

According to the EEOC’s lawsuit, Digital Arbitrage, Inc., doing business as Cloudbeds, failed to provide an accommodation to a job candidate who is deaf and uses American Sign Language to communicate. Cloudbeds terminated his candidacy on the basis that verbal communication and hearing were job requirements for the position in a remote setting. 

The alleged conduct violated the ADA, which requires employers to engage with applicants to identify and provide reasonable accommodations and prohibits employers from discriminating against qualified applicants based on their disability.

Under the terms of the three-year consent decree, Cloudbeds will pay $150,000 in damages to the candidate and agreed to take steps to ensure equal employment opportunities for members of the deaf and hard-of-hearing community in its remote-first workplace.

In addition to updates to the company’s reasonable accommodation policy and annual training for management and human resource employees about discrimination law, Cloudbeds will issue an annual executive video message on the company’s commitment to ensuring that people who are deaf and hard of hearing are provided reasonable accommodations.

The company’s human resource personnel will also complete an online training focused on integrating deaf employees into the workplace, and Cloudbeds will designate one HR team member to complete additional training on assistive technologies that deaf or hard-of-hearing employees or applicants may use to communicate in the workplace.

“We are pleased that we were able to reach an early agreement with Cloudbeds that will provide both monetary relief to the worker and injunctive relief designed to promote a company-wide commitment to inclusivity,” said EEOC Regional Attorney Jeffrey Burstein. “The EEOC commends Cloudbeds’ commitment to supporting workers and applicants who are deaf or hard of hearing. It is important that human resources and managerial professionals keep pace with changing technology as workplaces move to remote-first and hybrid settings.”

Justice Department Finds Mobile App Inaccessible

The U.S. Department of Justice announced that Service Oklahoma, an online resource designed to help people more easily navigate and obtain government services, violated Title II of the ADA by operating a mobile app that is inaccessible to individuals who are blind or with low vision.

In a letter to Service Oklahoma, the department detailed its findings following its investigation of a complaint filed by an Oklahoma resident who is blind and could not access the OK Mobile ID App.

The department found that the app poses accessibility barriers for people with vision disabilities. To use the OK Mobile ID App, people must scan or take photos of their identification cards and take pictures of themselves by connecting the dots that appear on the screen using only head and eye movements – tasks that are difficult or impossible for individuals who are blind to do without receiving any verbal feedback.

Thus, the department argues, Service Oklahoma violates the ADA by denying people with vision disabilities equal access to the OK Mobile ID App and by failing to ensure that communications with them are as effective as communications with others.

“Public entities, like Service Oklahoma, are increasingly using mobile apps to offer a wide range of critical government services, yet people with disabilities often face significant barriers accessing them,” said Assistant Attorney General Kristen Clarke of the Justice Department’s Civil Rights Division. “We will fully enforce the law to ensure that when public services are made available through technology such as mobile apps, those services are equally accessible to people with disabilities.”