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regarded as imperceptible The Supreme Court debates the rights of people with disabilities online

WASHINGTON − The Supreme Court wrestled Wednesday with whether Americans with disabilities may sue hotels for failing to disclose accessibility information on their websites even if they don't intend to stay there − a dispute that advocates say could have broad implications for the enforcement of disability laws.

Deborah Laufer, a Florida woman who uses a wheelchair, sued Acheson Hotels in 2020 after she discovered an inn the company operated in Maine did not disclose on its booking page whether it offered accessible rooms, violating a 2010 federal regulation that is tied to the Americans with Disabilities Act.

Civil rights groups say such “tester” lawsuits are critical to enforcing the ADA, the 1990 law that prohibits discrimination on the basis of disability. Millions of Americans living with a disability rely on hotels to make note of accommodations like ramps and roll-in showers on their websites, otherwise they may wind up discovering that they're unable to use a room until after they have already arrived.

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“If I go on a drive to a place and there's a sign up that says, ‘no disabled person is welcome,’ I've been discriminated against, correct?” Justice Sonia Sotomayor asked the lawyer representing the hotel company. “What's different than my going to a website and the website saying nothing about disability so I know I'm not welcome there?”

Adam Unikowsky, representing the hotel company, said that if a person saw that sign they wouldn’t necessarily be permitted to sue for discrimination “unless you want to enter the business.” In the case at hand, Laufer initially wasn't planning to visit Maine. Instead, she filed the suit to force the company to make the information available.

Critics frame the “tester” suits as supporting a cottage industry of lawyers who are using the courts to extract thousands in settlement fees from hotels. Laufer's opponents are quick to note the lawsuit isn't a one-off: She has filed over 600 similar cases across the country, they say.

President Joe Biden greets people after speaking about the Americans with Disabilities Act on Oct. 2, 2023.

Laufer lost her suit in U.S. District Court but a federal appeals court in Boston sided with her.

The case is Acheson Hotels v. Laufer.

When do 'testers' face disability discrimination?

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Much of the discussion during oral arguments on Wednesday focused on whether Laufer confronted discrimination solely based on what she experienced while visiting the website.

"The interesting and difficult question in this case…is do you actually experience discrimination when you go to the website and you can get all the same information anyone else can get, but you're experiencing discrimination because what would happen if you went to the hotel," Justice Brett Kavanaugh said.

Laufer’s attorney, Kelsi Corkran, pushed back. Disability rights advocates have argued that it would be impossible in practice to enforce the requirements if people had to wait until they arrived at a hotel to file their suit.

“There is a dignity harm in being treated as invisible and not as a potential participant in the marketplace,” she said.

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It's not yet clear if the Supreme Court will answer the underlying question in the case. Several justices questioned whether they could resolve the case or whether the dispute between Laufer and the Maine inn had resolved itself already. Laufer has dismissed her suit and the hotel is now under new ownership.

The company now includes information about accessibility on its website.

Court debates if case is 'dead, dead, dead'

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That caused several justices to suggest the underlying controversy is over so the case should be dismissed.

"The case before us is dead as a doornail," Justice Samuel Alito said.

Justice Elena Kagan agreed.

"So this is, like, dead, dead, dead in all the ways that something can be dead," she said.

But that view wasn't shared universally and, in particular, Chief Justice John Roberts voiced concern that the parties involved in the "tester" suits could simply dismiss their cases whenever one is appealed to the Supreme Court, which would have the effect of never resolving the underlying questions involved.

"It doesn't stop any of the other dozens of people, however many there are, who are doing the same thing," Roberts said.

Billy Altom, of Little Rock, Arkansas, prepares to board a waiting train using a newly designed bridge plate that bridges the gap between the platform and the train during an event to celebrate the 25th Anniversary of the Americans with Disabilities Act at the Amtrak station in Ann Arbor, Mich., on July 23, 2015.

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