According to the U.S. Department of Labor (DOL), October is National Disability Employment Awareness Month (NDEAM). And 2023 is the 33d anniversary of enactment of the ADA, which was signed into law by President George H.W. Bush on July 26, 1990. My blogs this week will focus on ADA issues. The choices are nearly limitless.
Recall that, while the ADA was the first nationwide law to apply to private and public sector employers – like Title VII first did in 1965 – Section 504 of the Rehabilitation Act of 1973 prohibited discrimination against individuals with “handicaps” (the term used at the time). The Rehab Act applies to employers and organizations that receive financial assistance from any federal department or agency.
A bit of little known history here too. Maryland was one of the first states to prohibit disability discrimination – and require that private and public employers make reasonable accommodations for qualified individuals with disabilities – with a 1974 amendment to what is now known as Title 20 of the State Government Article of the Maryland Code (it was then called Article 49B).
The ADA has provided us with loads of case law. Between 1990 and the enactment of the ADA Amendments Act in 2008, signed into law by President George W. Bush, the Supreme Court heard ADA cases more often than any other single employment law. At least it seemed that way to me.
But it is also important to remember that the ADA doesn’t just apply to employment; it also applies to public accommodation. One of the first cases heard by the Supreme Court this term (which always starts the first Monday in October) involves the ADA and public accommodation. Not the way you probably anticipate, however.
Last week, argument was heard in Acheson Hotels, LLC vs Laufer, No 22-429 (oral argument Oct. 4, 2023). The case may decide whether a self-appointed ADA “tester” has standing to challenge a place of public accommodation’s failure to provide disability accessibility information on its website, even if they have no intention of visiting that place of public accommodation. Or maybe it won’t decide that.
Testers have a long and significant history in addressing discrimination in housing. The Supreme Court first recognized that testers suffer harm when they are discriminated against and can bring lawsuits on their own behalf in Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), a Fair Housing Act case.
Laufer involves an individual with MS who searches the internet looking for hotels with websites that do not provide information about accessibility, something required by the ADA. But Ms. Laufer dismissed her case in the court below after certiorari was granted but before it was argued in the Supreme Court. No case or controversy then? Or as Justice Alito eloquently put it: the case “is dead as a doornail.” Most of the other justices seemed to concur, although stating it a bit differently. The Supreme Court tries hard to avoid making decisions it does not have to make, and this may be one of those times.
The case has gained some press attention as well. My favorite writing on the subject, which I commend to you, was an Guest Essay in the New York Times on October 4, 2023. It was written by Evelyn Clark, an associate at a D.C. law firm who uses a wheelchair after suffering a spinal cord injury eight years ago.
Ms. Clark’s essay is an excellent reminder to those of us who are not required to navigate the world with any appreciable extra effort that, in many areas, we still have a long way to go to provide the (often easy) accommodations folks may need.
The takeaway here? Employers, as well as providers of public accommodations, should routinely and continually reassess whether they are welcoming to individuals with disabilities, and be open to that the required interactive process for determining when a reasonable accommodation can be made without undue hardship. Go back and look at that NDEAM link provided above. See what you can do now, without prompting or being tested. Don’t wait for someone to sue you. You probably won’t like it.