The concept of tester standing is an important one to understand in Americans with Disabilities Act cases. Often times, businesses will be sued in ADA cases by individuals who may or may not have any desire to patronize the business, and simply alleging themselves to be “testers,” suing to ferret out and correct ADA violations. In our experience, many business clients find this concept confusing or wrong. But the practice has been thoroughly and repeatedly litigated and is accepted by many courts. It is therefore worth understanding very clearly.
In order to better understand why tester plaintiffs are permitted in the ADA context, one must remember that the Americans with disabilities act of 1990 is, after all, a civil rights law. In the civil rights context, the concept of testers is very well established. For example, in a case dealing with the Fair Housing Act, which was called Havens Realty Corp. vs. Coleman, the Supreme Court defined testers as individuals “who, without any intent to rent or purchase a home or apartment, pose as renters or purchasers for the purposes of collecting evidence of unlawful steering practices.”
In the context of the Fair Housing Act, the issue was illegal steering practices, in which African American or other minorities are steered (or turned away) from renting or purchasing property, while prospective white renters are welcomed. So as an example, in the Havens Realty case, an African American tester attempted to rent an apartment, and was told that there was no availability. A white tester was then sent in, and he told that there was availability.
In this way, the advocacy group was able to expose illegal practices, and sue to correct them, all by using testers – individuals who pretended to want to rent real estate but were actually just testing for compliance with legal requirements. In at least one landmark case, Houston vs. Marrod Supermarkets, the court analogized the situation in the Havens Realty case to a case in which an ADA tester plaintiff (Houston) sued a grocery store for alleged ADA violations.
The Houston court held that the Americans with Disabilities Act does not limit itself to protecting “bona fide customers” or protecting “paying customers” or any other such thing, but instead it protects disabled “individuals” – a much broader category of people. As a result, the practice of going to a business for the purpose of “testing” whether or not it is ADA compliant has generally been excepted, at least by some courts.
While this concept may seem novel (or even cause anger) amongst business and property owners who are sued by tester plaintiffs, it is noteworthy that private litigation is basically the primary way in which the ADA is enforced and has largely driven wide-scale ADA compliance. Having said that, there certainly are cases where the lawsuit should not have been filed in the first place, or is very much defensible. Indeed, this law firm went to trial in a case against a tester plaintiff and won. But remember, ADA compliance is always the best strategy for completely avoiding an ADA lawsuit – by a tester, or anyone else. Making sure the physical businesses and websites comply with the ADA is the most surefire way to avoid having to ever deal with an Americans with Disabilities Act lawsuit in the first place.