By Jeremy Einbinder
In an impending Supreme Court case, a hotel business seeks to capitalize on an unfortunate perception of people with disabilities and their advocates in order to escape from having to make plainly necessary accessibility accommodations. For the broader public, a common association with the Americans with Disabilities Act evokes the image of a sleazy attorney looking for an easy settlement and a freeloading plaintiff who is engaging in frivolous lawsuits. As a result, it appears that these charges unfairly persecute businesses that are only trying their best to serve the community. This is a clever and insidious public relations trick. However, the frequency of lawsuits concerning the ADA which result only in a cash settlement, and not in fixing an insufficiently accessible environment serve only to further this damaging narrative.
The ADA is, by reputation, a broad set of policies that function to serve the needs of people with all sorts of disabilities and guarantee that all can participate in both civic and commercial environments. This is not the case.
Explicit loopholes, such as the possibility of compliance with the ADA placing an “undue financial burden” on a business, and the fact that some businesses are considered too small to be subject to the standards of the ADA, mean that inaccessibility is not nearly as universal as it is meant to seem. In practice, ableist discrimination remains perfectly legal.
Then there are glaring de facto loopholes: First off, a disproportionate amount of people with disabilities are poor and do not have the resources to compel a place of public accommodation to follow ADA standards, even if, by the letter of the law, they are required to do so. Secondly, the cost of defending against ADA lawsuits can be substantial, and frankly, they are almost a complete waste of time if the violating business in question does not fix its accessibility issues. The instance of a cash settlement as a result of an impending lawsuit that does not result in the accessibility issue in question being rectified is a common stereotype that unfortunately has some basis.
When this practice does occur, it undermines the importance of accessibility. Its recognition as a common action only serves to portray people with disabilities as money-grubbing freeloaders who don’t need the accommodations that they claim are necessary. This is dangerous.
Instead, we need to undergo a massive architectural project that transforms our society to ensure universal access to all places of public accommodation.
The pursuit of equality of social power and accessibility for persons with disabilities remains a vision that must be rendered as completely and as universally as possible. Whether in our workplaces, educational institutions, or places of public accommodation, the goal is clear: to ensure universal access for everyone and ensure the ability of all people to participate in all areas of public life.
The Supreme Court case in question, Acheson Hotels LLC v. Deborah Laufer, detailed in USA Today, emphasizes the critical importance of universal access and the prioritization of the needs of people with disabilities concerning places of public accommodation, such as the plaintiff of the case. Lauffer acted as an accessibility “tester,” booking a room in which she did not actually intend to stay, but that nonetheless should have been sufficiently accessible nonetheless. Laufer has sued hundreds of businesses for ADA violations. Acheson Hotels LLC alleges that, because Lauffer was not actually a customer, her case does not have standing.
The American Civil Liberties Union (ACLU) argues that she does. They state, “Laufer has every right to assert disabled people’s right to access knowledge of accessibility features; without it, how can we make informed decisions about where we will stay? How do we know the rooms will preserve our dignity by not leaving us to sit on the floor of showers or sleep in our wheelchairs? Allowing ‘testers’ like Laufer to bring suit is a necessary component of enforcing disability law and promoting broad compliance with the ADA.”
In other words, if the court finds for Acheson, does that mean that a patron booking a room that is insufficiently accessible is just out of luck, with no recourse? That seems ridiculous.
The ACLU makes a compelling point, but the crux of the issue remains incompletely addressed, even if Laufer wins her case.
Just as we argued for universally accessible housing and living spaces in a previous article for the Council, we must also advocate for the same transformative processes to apply to all businesses, organizations, institutions, clubs, and any other places in which people with disabilities might ever be a patron.
This case serves as a focal point in the ongoing discourse about disability rights. The case challenges the interpretation and application of the Americans with Disabilities Act (ADA) in the context of public accommodation. However, the potential outcomes of this case, whether in favor of the prospective patron or the business establishment, fall well short of creating the transformative change needed.
A victory for Lauffer, while partially addressing her specific grievance, may leave systemic issues unaddressed. It may also continue to perpetuate the practice of attorneys settling with inaccessible businesses financially without ensuring the problem of inaccessibility is ever rectified. Similarly, a ruling in favor of the business establishment might prioritize profit over the fundamental rights of individuals with disabilities. This would perpetuate a cycle of inaccessibility. This cycle can only be broken with a genuinely transformative project which would make universal accessibility a reality.
Much like the housing approach we advocated for in the article titled, “A Universal Approach to Housing”- which calls for consultation with diverse communities regarding housing and living spaces – an Accessibility Revolution would prioritize extensive input from various disability communities to ensure that the transformation is holistic and inclusive in all public spaces.
The parallels between housing and public accommodation are clear. Just as accessible housing is essential for independent living, accessible public spaces are vital for full participation in society.
We need a massive public works project aimed at proactively and retroactively making all places of public accommodation universally accessible to all patrons, just as changes to the building of houses and layouts of neighborhoods would make all living spaces universally accessible.
Central to such an Accessibility Revolution is the idea of consultation and collaboration. Everyone involved in the process of design and construction must engage with communities and individuals to understand their unique needs. By consulting extensively with various disability communities, the Accessibility Revolution would ensure that the transformation is not a one-size-fits-all solution but a tailored approach that caters to diverse needs.
As we await the ruling of Acheson v. Laufer, we recognize the limitations of both possible outcomes. To truly transform our society into one that champions accessibility and inclusivity, we must embrace the transformative potential of a future Accessibility Revolution.
We must create a world where accessibility is not an afterthought but a fundamental aspect of our public spaces. It transcends the boundaries of mere compliance and ushers in an era of true universality.Top of Form
