What are ADA Testers and Do They Have Standing?

You may already know of the Americans With Disabilities Act (ADA), as a law that protects people at work, and which requires that reasonable accommodations be made in the workplace in order to accommodate those with disabilities.

But even outside of the employee employer relationship, the ADA has strict requirements on buildings and constriction, and on building access for those with disabilities.

The Use of ADA Testers

In the past few years, many businesses have complained about what are known as ADA testers. These are people with disabilities who randomly go to businesses and buildings, to see if they are ADA compliant. They will check the heights of star railings, the width of doorways, whether there is braille on lettering, and virtually every other thing the ADA requires.

The problem, from a business’ standpoint, is that these testers, although disabled, aren’t actually customers of the facility or building they are testing. They are merely there, just to see if the building or business is ADA compliant—and to sue if it is not. Thus, they are not actually being denied any access themselves.

Because of this, businesses targeted by testers say that the testers have no standing—that is, they have not been deprived of anything, or suffered any loss themselves, because of noncompliant facilities.

As a result, many businesses have complained that these testers are just fishing for lawsuits, or that they are “lawsuit mills,” or that they have their own pockets in mind—not the best interests of the disabled population in general.

The problem has gotten even worse, with requirements that websites be ADA compliant, as now testers can review websites from home, and make claims of ADA noncompliance, without physically visiting businesses.

An Important Function?

Testers say that they perform a vital function, acting as a “private ADA enforcement agency,” and that by finding non compliant businesses, and forcing them to make changes, that they are making things easier for disabled people who will frequent the businesses that the testers target.

No Uniform Laws

There is, unfortunately, no definitive case from the Supreme Court that says whether or not an ADA tester has the right to sue, or whether the tester has no legal standing.

There was a Supreme Court case that almost dealt with the issue, but they declined to address it directly.

Others have suggested that congress perhaps require notice before ADA suits get filed, or else, allow the Department of Justice to review ADA based claims before they are filed, to quell the tide of tester lawsuits.

But until the Supreme Court ever rules on the issue, it means that businesses and testers will have to deal with a hodge podge of often inconsistent case law on the issue.

Still, the issue of lack of standing is still one that businesses targeted by ADA testers, can use in court, and many courts have recognized it as a valid defense to ADA violations brought by testers.

Is your building compliant with government codes and laws?  Call our Fort Lauderdale business lawyers at Sweeney Law P.A. at 954-440-3993.

Sources:

natlawreview.com/article/courts-weigh-whether-serial-litigants-and-ada-testers-are-eligible-to-bring-ada

fedsoc.org/commentary/fedsoc-blog/ada-testers-can-keep-testing-for-now#:~:text=The%20Supreme%20Court%20took%20the,have%20held%20that%20they%20do.

jdsupra.com/legalnews/do-ada-testers-have-standing-scotus-9355804/