On October 5, 2022, at Laufer v Acheson Hotels LLCthe United States Court of Appeals for the 1st Circuit overturned a lower court’s dismissal of a lawsuit against Acheson Hotels, LLC, which operates an inn on Maine’s south coast.
In her complaint, the complainant alleges that when she visited the hostel’s website, it did not identify accessible rooms, provide an option to book accessible rooms, or provide sufficient information about the features accessibility of the hostel. She also claims that this information was missing on third-party booking sites. Laufer argued that these information gaps violated regulations promulgated under the ADA that lodging places must “[i]identify and describe accessible features in hotels and rooms offered through its reservations service in sufficient detail to reasonably enable persons with disabilities to independently assess whether a particular hotel or room meets their accommodation needs accessibility. 28 CFR § 36.302(e)(1)(ii).
Dismissal from a lower court and a growing trend in website accessibility lawsuits
The trial court determined that Laufer’s self-confessed status as a “tester” and not a traveler — for the sole purpose of inspecting the hotel’s website for ADA compliance — was fatal to his request. Laufer could not demonstrate a concrete injury, so the court dismissed his case. She hadn’t planned to visit a physical location, but is a serial litigator residing in Florida who has filed hundreds of ADA-compliant lawsuits against businesses across the country. Laufer’s litigation is part of a larger, nationwide explosion of website accessibility lawsuits as individual cases and class actions. Plaintiffs brought these claims in federal court under Title III of the Americans with Disabilities Act (ADA) and, in some cases, under similar state and local laws.
These claims have raised serious questions about if, when, and how website owners must comply with the ADA. There is no legislation that directly defines technical requirements for website accessibility. And while the U.S. Department of Justice (DOJ) said “the ADA applies to public hosting websites,” it didn’t specify exactly what standards websites must meet to comply with the ADA. law. In the absence of clear guidance, courts considering the matter have frequently turned to the Web Content Accessibility Guidelines (WCAG), first developed by the World Wide Web Consortium (W3C) in 1999, but recently updated in 2021.
In 2021, 2,895 website accessibility lawsuits were filed in federal court. This figure (which does not include state court filings) represents an increase of more than 350% over case filing rates just five years ago. During this period, the question of whether a plaintiff can sue a company based solely on alleged accessibility defects on its website has divided the circuit courts. And now the first homer has entered the fray.
First Circuit takeover of Laufer’s claims
Dusting off a 40-year-old Supreme Court precedent allowing racial discrimination testers under the Fair Housing Act of 1968 to sue, the First Circuit found that Laufer had demonstrated sufficient harm to have standing for bring an action. According to his reasoning, “the Supreme Court has repeatedly stated that the denial of information to which plaintiffs have a legal right can be a concrete prejudice in fact”. And even though Acheson changed its website to show that the inn does not have ADA-compliant accommodations, the first circuit reignited the lawsuit against Laufer because there were still plausible claims based on websites. third-party reservations that may not have been updated.
Main Takeaways for Hospitality and Other Industries
What does the Laufer dominant medium for the hospitality industry in New England? Website accessibility litigation risk has increased significantly for hotel companies based in Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island, as well as for accommodations that offer online reservations. online to residents of these states.
Even companies that don’t fit this profile should take heed: Companies across all industries, regardless of location, have been targeted in website accessibility lawsuits, primarily in state and federal courts in New York. York, California and Florida.
Businesses should seek legal counsel to assess their level of exposure to website accessibility litigation risk based on the current website location, industry, structure and content and, to accommodations, third party booking arrangements. Armed with this information, businesses and their attorneys can assess current levels of website accessibility, develop plans for continued and improved compliance, and then take immediate action to adopt the first improvements that can be implemented immediately. For a comprehensive guide to managing website accessibility litigation risk, see our previous advice to clients.
Website and digital accessibility is a rapidly evolving area of law. With an increasing number of conflicting rulings and the possibility of new laws and Supreme Court directives, we will be monitoring this topic closely and keeping our clients informed of key developments.
©2022 Pierce Atwood LLP. All rights reserved.National Law Review, Volume XII, Number 287