ADA Website "Tester's" Lawsuit Dismissed – Again
In 2020, we saw an explosion of federal lawsuits against hotels alleging that they failed to comply with 28 C.F.R. 36.302(e) of the Americans with Disabilities Act (ADA) by not identifying accessible features on their own and third party booking agents’ websites.
Twice this year, we reported that ADA website lawsuits filed against hotels by serial plaintiff Deborah Laufer were dismissed as she failed to show she had standing to sue. Is the third time a charm, or is it the prelude to an appeal?
On November 19, 2020, a federal district court judge dismissed yet another ADA website lawsuit because Ms. Laufer failed to show she had standing to sue under Article III of the Constitution because she did not show “individual” or “particularized” injury.
Testers
Ms. Laufer is a self-described “tester” who reviews hotel websites to determine whether these “places of public accommodation” and their websites are in compliance with the ADA. Testers such as Ms. Laufer – who is disabled and allegedly requires disability accommodations when visiting hotels – reviews hotel websites to determine if the websites meet the ADA’s requirements for providing disability information about the hotel’s accommodations under Section 302(e). If they do not, she sues them, using the same lawyers and the same cookie-cutter complaint.
Ms. Laufer, who resides in Florida, has filed nearly 500 ADA website lawsuits against hotels in Florida, Georgia, Maryland, New Jersey, New York, Illinois, Texas and other states. Whether testers such as Laufer intend to actually visit these hotels (and return to the website to make a reservation) is unknown.
Article III Standing to Sue – Individual or Particularized Injury
In the current case, Deborah Laufer v. BRE/ESA Portfolio, LLC, Judge Stephanie Gallagher of the United States District for the District of Maryland explains that “Article III of the United States Constitution restricts the jurisdiction of the federal courts to actual “cases” and “controversies.”
Judge Gallagher refers to the Opinion in another ADA website tester’s lawsuit, Griffin v. Dep’t. of Labor Fed. Credit Union:
“Laufer’s Complaint is defective because she too has failed to plead individual or particularized injury. Like Griffin, she asserts that the reservation websites do not comport with the ADA’s requirements, causing her informational injury because she is unable to assess the suitability of the facility and to reserve a room that adequately accommodates her disability. Her Complaint, however, contains no facts suggesting that she harbored any present intent to stay at ESA or even to set foot in Maryland. Instead, the Complaint clearly and simply alleges that she maintains a list of properties she has sued and continues to monitor their compliance by re-visiting their reservation websites.”
In our earlier blog regarding a previous lawsuit, Federal Judges Deal Further Blows to Deborah Laufer’s Nationwide ADA Lawsuits Against the Hospitality Industry, we reported that Paula Xinis a United States District Judge for the District of Maryland, wrote of Laufer:
“She does not present any facts to make plausible that she would or could stay at the hotel or even travel to Maryland.”
Judge Xinis also determined that “Laufer’s claimed injuries are hardly imminent because as pleaded, she has failed to make plausible that she would return to the website “other than . . . as a tester, which alone is insufficient.”
Could the results in these cases indicate an end to the serial lawsuits filed by ADA website testers? Rather, it is likely that these decisions will result in appeals.
How to avoid ADA website litigation
Whether or not testers have standing to sue hotels for not complying with ADA standards on their websites, hoteliers still have to deal with the headache and expense required to respond to these lawsuits. The best course of action is to update your websites to comply with the ADA and make sure OTAs that present your properties on their sites do the same. For more information on requirements, see ADA Requires Hotels To Describe Accessibility Features On Website.
An Employer’s Guide To Implementing Disability Accommodations In 2021
The economic crisis brought about by Covid-19 touched the lives of all Americans, but individuals with disabilities were faced with more challenges than most. About 1 million people with disabilities lost their jobs between March and August, and at 12.3% – the unemployment rate for the disability community is double the national rate of 6.2%.
The arrival of a Covid vaccine brings hope to many that life will return back to normal. But for individuals with disabilities, a return to any semblance of normal isn’t good enough. In order to improve working conditions for the disabled community, employers must begin 2021 with a plan for improving and creating more diverse and accessible workplaces.
Individuals with disabilities are often overlooked during the hiring process, but they are motivated and qualified to work in a variety of in-demand industries. Many employers incorrectly assume that hiring people with disabilities is complicated and expensive, but in reality, these concerns stem from common misconceptions around accommodations and people with disabilities in the workplace.
Many people with disabilities do require some reasonable accommodations in order to work, but these changes are often simple and inexpensive. Below are answers to a few of the most common questions employers have about reasonable accommodations and how to incorporate them in 2021.
1) What is a reasonable accommodation?
The legal expectation of reasonable accommodations comes from the Americans with Disabilities Act (ADA) and is defined as providing assistance or making changes to a position or workplace to enable qualified employees to do their job despite having a disability, unless doing so would pose an undue hardship on the employer. Qualified employees are all those who have the requisite degrees, skills and experience to perform the job’s essential functions, with or without accommodations.
2) What do accommodations look like in practice?
There are a variety of changes that could be considered reasonable accommodations, including modified schedules, flexible hours, and remote work opportunities, which are now more common than ever. This last one is a policy the disability community has been advocating for, unsuccessfully, for years. Employers, citing concerns of decreased productivity, were reluctant to implement it, but the pandemic has effectively invalidated that argument. A sizable number of Americans successfully transitioned to remote work within a matter of weeks, and with many continuing to do so, there is reason to hope that more employers will offer remote accommodations to those with disabilities in the future.
3) How much will it cost to implement these accommodations?
The majority of employers would probably be surprised to know that most accommodations can be provided very inexpensively. An ongoing survey conducted by the Job Association Network (JAN) found that 56% of accommodations cost absolutely nothing to implement, such as those that simply require adapting previous work styles or processes, while the rest of the accommodations cost, on average, around $500.
4) What effect do reasonable accommodations have on a workplace?
In general, offering reasonable accommodations turns out to be just as beneficial for the employers as it is for individuals with disabilities. These accommodations are meant to increase productivity and allow employees to work as efficiently as possible, and the general principle that investing in employees yields better overall success holds true in this instance as well. The same JAN survey found that employers who provided reasonable accommodations benefitted from greater employee retention, improved productivity and morale, reduced workers’ compensation and training costs, and improved company diversity.
Millions of Americans are hoping that 2021 will bring much needed changes and individuals with disabilities are no exception. As employers consider hiring needs for the new year, this information can help inform their decisions so they don’t miss out on the talented and motivated potential employees who are often overlooked.
Making reasonable accommodations for these individuals is an inexpensive and effective way for employers to create a more efficient and inclusive workplace for all employees. Employers have as much to gain by doing so as their employees, and these simple changes will go a long way toward improving the employment opportunities for individuals with disabilities nationwide.
Three Tips for a Legally Defensible Interactive Process During the Pandemic and Beyond
For many employers, the COVID-19 pandemic illuminated ongoing legal compliance challenges. As one example, with a sudden and sharp increase in requests for accommodations under the American with Disabilities Act (ADA), employers across the country learned that they may benefit from a more streamlined and efficient ADA process.
Just this week, on September 8, 2020, the Equal Employment Opportunity Commission (EEOC) released guidance concerning the interactive process during the COVID-19 pandemic. As your risk management partner, we offer the following three tips for a legally defensible ADA interactive process during the COVID-19 pandemic and beyond, consistent with the EEOC’s recent guidance.
Tip #1 – Begin with a streamlined ADA interactive process policy and procedure.
According to the EEOC’s recent guidance, the spread of COVID-19 resulted in excusable delays during the interactive process. Nevertheless, the EEOC advises employers to address employees’ request for accommodations as soon as possible.
To avoid unnecessary delays, employers are best advised to develop and implement an ADA accommodations policy that will generally apply to all requests for an accommodation. Except where the need for an accommodation is obvious (such as an employee in a walker or wheelchair), the interactive process may begin with the request for medical substantiation of the disability and need for an accommodation. For maximum effectiveness, your ADA accommodations policy would direct employees to your standard ADA accommodations forms to begin the interactive process.
Tip #2 – Consider engaging in informal dialogue and offering interim solutions.
The EEOC’s guidance indicates that responsiveness is key to a legally defensible interactive process. While allowing an appropriate amount of time for employees to comply with documentation requests, employers may manage legal risk by beginning an informal dialogue and offering reasonable interim solutions, to the extent that the employee has immediate needs that may be addressed without undue hardship.
Tip #3 – Avoid boxing yourself in to an indefinite telework accommodation.
Notwithstanding telework arrangements necessitated by COVID-19, the EEOC advises that unknown or indefinite timeframes may render telework accommodations either not feasible or an undue hardship. If you have an employee request to telework indefinitely, you may wish to grant a limited extension of telework (to the extent reasonable) while you explore a more reasonable option with the employee.
BONUS TIP – Adopt an accommodations policy before reopening your workplace or bringing employees back from furlough.
According to the EEOC’s recent guidance, employers may ask employees to request accommodations before the workplace reopens or before employees return from furlough. If you do not have an accommodations policy and procedure yet, now may be the ideal time to adopt a streamlined ADA accommodations policy and procedure.