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ADA Lawsuit “Testers”: Can They Sue Businesses That Aren’t Compliant?


You may already know that your physical premises must be disability compliant, and accessible to the handicapped and disabled community. The Americans With Disabilities Act (ADA) does have a few exceptions, but as a general rule, if your business doesn’t meet stringent height, accessibility, or measurement requirements, your business or property can be seen as violating the ADA.

The Use of Testers

The ADA has given rise to a large industry, known as “disability testers.” The way it works is that someone with an ADA protected disability—say, for example, someone in a wheelchair—goes to a business. Once there, the disabled person measures the building—things like the height of stairway handrails, or the width of door frames, or the availability of ramps in lieu of stairs.

If the tester does find a violation of the ADA, the tester then sues the business under the ADA.

Critics of testers say that testers don’t have standing—that is, they aren’t actually seeking to enter, use, or access the properties they are on, they are just there to test to see if the business complies with the ADA, and then sue. Because they weren’t actually at the property to access it, critics say they do not have standing to sue—they have suffered no harm or damage themselves.

They also say that testers often bring trivial lawsuits, for smaller or technical violations of the ADA, driving up the costs of doing business, and turning the ADA into a lawsuit factory.

Proponents say that testers ensure that businesses remain compliant, as many disabled people would just leave a property that wasn’t accessible, instead of suing. Testers save disabled people from having to constantly file lawsuits, so the argument goes.

Every Court is Different

The question of whether testers have standing has become a difficult one, because each federal court district has found differently.

Here, in Florida, as the eleventh circuit, the Court had previously found that testers do, in fact, have standing, and thus can bring suit for violations of the ADA, even if the tester has no intentions of frequenting the facility or business.

That’s bad news for any business that may be targeted by a tester, but good news for disability rights advocates. But the problem comes for businesses that have multiple locations in different federal circuits, because 3 federal circuits have said that testers do, and 3 have said that they do not, have standing to sue.

Supreme Court Doesn’t Rule

One case involving a tester made it to the Supreme Court, and the hope of many businesses was that the Court would resolve this split, and say once and for all whether testers had standing.

But no such luck—the Supreme Court declined to hear the case (considering it to be moot), and thus, never got to determine the merits of the actual question.

Is your business compliant with the law? Come see us for help. Call the West Palm Beach business litigation attorneys at Pike & Lustig today.




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