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In an episode inspired by the pending SCOTUS case Acheson v Laufer, Michelle, Stephanie and Raquel sit down with Julia Métraux, a journalism fellow at Mother Jones, NDRN’s own Amy Scherer to discuss her lived experiences navigating lodgings as a person with a disability, and finally we talk with Michelle Uzeta Deputy Legal Director at the Disability Rights Education and Defense Fund to dispel some of the myths put forward by the hotel lobby.
Check out Julia’s work: https://juliasmetraux.journoportfolio.com/
Michelle’s blog post countering myths the hotel lobby perpetuates: https://dredf.org/web-log/2023/07/28/acheson-v-laufer-debunking-common-ada-enforcement-myths/
Full transcript of this month’s episode available at https://www.ndrn.org/resource/panda-pod-august-23/
Michelle Bishop:
Hi everyone. Welcome back to our podcast. It is August in DC, which means it is both quiet and hot and somehow I am still stuck in the office. I don’t know about you guys, but Michelle Bishop and I am one third of our hosting team here on the podcast. I’m the voter access and engagement manager at NDRN.
Stephanie Flynt:
And I’m Stephanie Flynt, one of our public policy analysts at NDRN. And fun fact, on the metro this morning I drank 19 ounces of iced coffee in 19 minutes.
Michelle Bishop:
That is so problematic.
Raquel Rosa:
And I’m Raquel Rosa. I am the community relations specialist at NDRN, and sadly, my mom still does not listen to the podcast, but I know somebody’s mom who does.
Michelle Bishop:
Oh, that’s right. We got an email from the one and only Carol Bishop, our favorite, longest running listener, or at least we thought, because it turns out she just started listening to our podcast a few months ago. And I will say this, when we were contacted by my mother, she did not contact us to compliment how good of a job I do on this podcast. She specifically said to make sure Jack, our producer knows what a good job he’s doing on the podcast. So thanks for that, mama. But Jack, why don’t you go ahead and introduce yourself to the people.
Jack Rosen:
And hi, this is producer Jack Rosen. This month we’re talking about ADA Access and hotels. What brought this topic on is the pending Supreme Court case, Acheson Hotels versus Laufer. This is a dispute between a hotel corporation and an ADA tester. So what is an ADA tester and what’s at stake in this case? Well listen to today’s episode and we’ll be discussing all of that and more.
We’re also having on Julia Métraux, a journalism fellow at Mother Jones who wrote an article about this case and talks about that article, the broader issue and her experiences as a person with a disability in journalism. Additionally, we have on our own Amy Scherer, who talks about traveling as a person with a disability. And finally we have on Michelle Uzeta from DREDF who helps dispel some of the myths that the hotel lobby are putting forward about a accessibility.
Michelle Bishop:
Whoa, that is an action packed episode. All right, well let’s get right into it then.
Raquel Rosa:
Well, friends, today we are joined by Julia Métraux. She is a fellow at Mother Jones. Thanks for joining us today, Julia. How are you?
Julia Métraux:
I’m doing well. Thank you for having me.
Raquel Rosa:
So I was hoping that you could talk to us about how this case first came to your attention.
Julia Métraux:
Yeah, so this case came to my attention. I had covered a previous Supreme Court case, the nursing home one, and someone in the disability community, a Rebecca Coakley, had messaged me asking if I was paying attention to the tester case and I had not been paying attention yet. So she nicely brought it to my attention and that’s how I personally learned about it.
Stephanie Flynt:
I’m really glad that this is getting some good coverage. I know that in reading your article it does, I know when it comes to the business community that individuals with disabilities are overly litigious, but do you feel like that’s a reflection of how our system is currently working when it comes to the ADA enforcement or what’s your take on that?
Julia Métraux:
I would say my take falls into a few different categories. The first is, as we know, the United States is a very capitalistic country, so it’s not that surprising that many of our systems also work in that way. And I have to say a bit about myself, I’m what you call an ADA baby. So I was born after the ADA came into play. When I think about the ADA, especially with Title III, when you hear these lawsuits, one of the first thing that comes to mind is with all things, they’re the exceptions that prove the rule, but that doesn’t mean everyone else. It’s like that or even a majority are. I also think another thing that’s important to keep in mind is it’s not fun to file complaints or lawsuits when you’re not being welcomed or able to access communities, stores, et cetera. It can be very almost cumulating.
It could be annoying. As I mentioned in my article, it can also be very, very bad. For example, if a private hospital doesn’t have web accessibility on their site, then people aren’t able to read a message from their doctor if they’re using a screen reader for example, or they might struggle to get into a store. I think with this case in particular, it’s also one of those Supreme Court cases where it could have a greater effect than just the initial lawsuit and rulings itself. And also like Dorin Dorfman told me that there had been a long history of using testers in this country and it’s also is currently used under the Department of Justice. So I think that’s a very important thing to keep in mind.
Stephanie Flynt:
Yeah, I really appreciate you bringing the attention to claims and filing claims and lawsuits in particular, those particular things in your article. It’s something that, I mean, for starters, litigation takes a lot of time. I don’t think anybody wakes up and goes, “Oh yeah, I’m going to file a lawsuit because it’s going to be my quickest way to resolve these issues.” And I feel like, of course, going back to the screen reader thing, which I am a screen reader user, I’m a blind person as most of our listeners know. But yeah, I mean there are times when certain websites might not be the most accessible, especially if you’re filing a complaint with a company in terms of the accessibility or even just the fact that there are some people, a lot of people actually being a minority group who is disproportionately affected by being low income and poverty, a lot of people don’t realize that they can file complaints and that they can do it.
And also too, taking into consideration the spoons aspect of it or feeling like that you can do this mentally. I can tell you right now that I’ve definitely had some complaints that I am like, “I know I need to file this, I know I need to file this, but I just do not have the mental energy to do that.” So thank you so, so much for bringing attention to that.
Have there been any surprising in the business community when it comes to complaints? When you were looking into this case, for example, the Clint Eastwood’s case, did you see anything in particular that kind of stood out to you? Any claims that were in particularly surprising?
Julia Métraux:
Yeah, so when it came to the Clint Eastwood’s case, that’s a great thing about having great sources. Doron Dorfman brought that case to my attention. I did not know about it previously. And in the wording of what Eastwood said after he had defeated the case was somewhat along the line that I’m standing up for the little guy and all these things. It’s like, “Wait, you have so much money and you’re not exactly a little guy here.” I think that it’s important to knowledge that some people could just be doing a lot better and maybe don’t care. I also think when it comes to the specific Supreme Court case, that there might be some small businesses that might not genuinely be up to par when it comes to everything you need to do for ADA accessibility, for example, that includes, which this Supreme Court case involves, is having to have accessibility information on your website.
Just going back a bit to the case, there was something cited in the case where one of the hotels said, “Sorry, we don’t do ADA accessibility here,” or something along those lines, which is a complete joke. It’s a 30 plus year old civil rights law. You can’t just say you don’t do it, but there might be some companies that might not know that you need to put ADA accessibility information on the site and not just as it pertains to let’s just say, make an accessible for screen readers, maybe using a background of a site and texts that have good contrast. So I think there needs to be more work, and I think a lot of advocates say the same both in the disability community and the small business community of awareness of what needs to be done and what should be done because really that benefits everyone.
And we’ve been talking about filing lawsuits and following them through takes time. This what a Title II case I believe. But another one is I am a recent graduate of UC Berkeley Graduate School, and last fall there was a years long investigation and I believe the state or the county, someone in the DOJ had gone after UC Berkeley for not using either captions or having a transcript available on online material. That took years. If a student themselves had gone after the school for that, they would maybe be chasing that long after they graduated. And that’s just an example of how frustratingly long it could be. But yeah, hope that answers the question well.
Stephanie Flynt:
Yeah, absolutely. And again, thank you so much. I like that you brought up the fact that they’re definitely still businesses, including hotels that for one reason or another, I guess sometimes it’s their staff that are trained who are like, “oh, well we don’t have to comply with this.” And I’m like, “Yeah, you actually do.” And then there may be some, which I’ve discussed with another person who’s going to be featured a little bit later in this episode. I won’t spoil it too much, but there was a particular hotel that was not accessible, not physically accessible, and there was no way that it was going to be physically accessible. And this is stuff that’s happened in recent years and you’re just like, “These people need to get with the program.” But all that to say, of course, I don’t want to take up the entire podcast. So Raquel, I know you had a few other questions.
Raquel Rosa:
I sure did. So switching gears, Julia, I was hoping you can speak with us about your thoughts on how the media could do a better job of covering issues that affect people with disabilities.
Julia Métraux:
One of the first things I’m going to say is hire disabled reporters and also talk to disabled people, not just non-disabled people around them. I came to covering this because of my connection to the disability community and also being an openly disabled reporter. I think that just looking at the world around us and talking to people is super helpful. I also, I’m not going to call it X, but disability Twitter is still there, still talking about many inaccessibility issues and inequities, and I think that something that it’s important to keep in mind and could also perhaps maybe be a bit frustrating in the 24/7 news cycle is that sometimes disabled sources need more time to schedule an interview and all that thing and I get that. I’m a chronically ill reporter. I definitely feel like I’m running on a hamster wheel, and that’s part of the own pressure I put on myself not really pressure anyone puts on me, but yeah, working in [inaudible] time doesn’t always align with the media and I think that planning ahead and all that is super helpful and also giving time.
And unfortunately we see, I say unfortunately, but sometimes they could be fortunately too, a lot of these cases and all that are playing out in courts right now. I think it’s very interesting. I say this also someone who is high risk for COVID-19 complications, ADA cases that pertain to COVID safe working conditions. We are just seeing how it’s starting to play out, including safety and hospitals.
Raquel Rosa:
Thank you. I think it needs to be said again that the best way or one of the best ways that the media could enhance their coverage of disability specific issues is to actually engage with the disability community. I certainly, there’re countless articles I’ve read where the folks being interviewed are indeed the folks around people with disabilities. So I think we need to be a lot more intentional about telling people stories with their voices. I think you completely hit the nail on the head there. So this kind of segues into my next question. You identify of course as a journalist with a disability, so I was wondering if you could share a little bit more about your personal experiences in this professional space?
Julia Métraux:
Yeah, so, a little bit nerdy, I started doing journalism in high school. I was born with a mild to moderate hearing loss, but that didn’t really shape my career when it was starting. I had to leave undergrad, I was very sick, was an undiagnosed autoimmune disorder, and that brought me into health reporting and by adjacent disability reporting, not that other people weren’t doing disability reporting. There definitely were and continue to be amazing fellow disability reporters, but it’s really a growing beat. And so when I was both as a freelancer before and during grad school, I was like, okay, I want to pursue this as a beat. And that is one of the things that I’m hoping to be able to continue to do at Mother Jones.
Raquel Rosa:
Julia, can you share with us where we can follow your work?
Julia Métraux:
Yes, I am on Twitter until the very end. I am also recently joined Blue Sky and I’m also on Instagram. I also have a somewhat unusual last name, so if you Google me, there’s only two Julia Métrauxs in the world and the other one has no digital footprint. So it’s pretty easy to find me.
Raquel Rosa:
Well, thank you, Julia. On behalf of the entire podcast team, on behalf of the PandA network and NDRN, thank you for sharing your insight and experience with us. This has been just very enlightening and revitalizing, I think to just consider the breadth of issues that are before us. So thank you so, so much for joining us today.
Julia Métraux:
Thank you so much for having me. Like I said, disability reporting, it’s definitely a growing beat and many of us are definitely trudging along and I really hope to see more disability reporting as the years go along.
Stephanie Flynt:
Alrighty, so we actually have a super special treat this month for our spotlight story here on the PandA Pod. We have Amy Scherer, who is one of our colleagues here at NDRN. She is the senior staff attorney who works on vocational rehabilitation, and I’ll let her introduce herself to the people real quick before we get into all things wheelchair access and hotels.
Amy Scherer:
Hello. I’m very happy to be here. Thank you, Stephanie for having me, and I’m really excited to be able to talk about such an important issue as hotel accessibility. I’m very interested in it professionally, but also personally as a wheelchair user, so I look forward to talking with everyone.
Stephanie Flynt:
Yeah, absolutely. So just to kick us off a little bit, I know that a lot of people don’t always think about accessibility when it comes to hotel rooms and the various types of accessibility that there are rooms that are specifically designed for folks who are deaf who stay in them. They’re of course the wheelchair accessible rooms, but I know that there are definitely times when you may be given a totally different accessible room that doesn’t meet your accessibility needs or even just a non-accessible room entirely. So I would love for you to share a story with our listeners about a time when that has happened to you. I’m assuming you’ve got some stories.
Amy Scherer:
I definitely do. I probably have a bunch that I could pick from, but I will start with this one primarily because it was fairly recently and it did really put a crimp in the plans that I had. So we were staying in a hotel in this area in the Washington DC, Virginia, Maryland area, and we had specifically requested a wheelchair accessible room, confirmed reservation, and had requested a roll-in shower instead of a tub, which works better for me. And when we got to the hotel, they actually did not have an ADA wheelchair accessible room. They did not have a room that had grab bars, which again is another usually standard part of an ADA wheelchair accessible room. And they did not have a roll-in shower either, so it wasn’t even that someone else was in the room that didn’t need it.
They literally did not have a room that met the specifications that we had requested even though, like I said, we had a confirmed reservation. So that was a big issue. And I guess on the good side, there was a solution, but it was not an easy solution. The hotel had another chain located about 10 to 15 miles away from where we currently were, and they offered us the opportunity to take an accessible room in that location instead of where we were. And it did work out, but it really was a major inconvenience because we had to get back in the car and drive 10 or 15 miles in traffic to go to the other location, get out of the car again, unpack everything and repeat the process. So the second room did work and it did meet the needs of what we were looking for, but it was really a pain that we had to go to an entirely different location than the hotel that we had initially chosen.
Stephanie Flynt:
Wow, that’s definitely a unique experience. I’ve definitely heard a lot about folks. Of course, very important, the hotels having these accessible rooms and then folks requesting them and then people not getting them. But I don’t think that until today that I’ve heard of a hotel, at least in this day and age because I know that we had talked a little bit before and it sounds like this story was relatively recent, a hotel that just didn’t have an accessible room at all. That’s bananas.
Amy Scherer:
It was very surprising, like you said, especially for me because it was within the last three years. So it’s not something that I really even think about so much in 2023 that something like that could happen. I think in general, I would say my experience has improved dramatically from the last 10 to 15 years to now in terms of hotels being more tuned into that type of thing and more something like that would not be that likely to happen, but it did.
Jack Rosen:
So when we were getting ready to do this interview, you mentioned to us that it’s not just not having an accessible room, but sometimes the rooms designated as accessible, actually aren’t because of some of the design choices they’ve made.
Amy Scherer:
Sure. I’ll be glad to talk about that. And I think it’s important to say, first of all before I explain some of the issues that I understand that when they’re making a wheelchair accessible room, they’re trying to make it work for as many people as possible who use wheelchairs. And of course we all come in different shapes and sizes, so that can be challenging. But even with that in mind, sometimes they really do fail in creating something that’s going to work for someone who is a wheelchair user or non-ambulatory. So the three examples that I run into quite a bit are first of all, the height of hotel beds. I guess it’s important to note that I am about four feet, nine inches tall, so I’m definitely on the shorter end of things, which makes it a little bit more complicated. But I have been a little bit dismayed by the trend in the last eight to 10 years at almost all hotel chains to have higher beds.
I’m not sure why that became more attractive or more aesthetically pleasing, but there was definitely an overall shift to having really high hotel beds on platforms and being a shorter person and then a person who’s trying to transfer from a seated position onto a higher bed it can be very, very difficult to the point where with the way that a lot of hotel rooms are right now with the bed situation, I’m not able to travel independently because I honestly cannot do the transfer from a little wheelchair to a high bed on my own. So that has been a big issue and I have seen in recent years on the plus side, or very recently, I would say even just within the last year, having a bit more of a choice if you ask that there might be a lower bed option and a higher bed option, both within the wheelchair accessible room blocks.
So I do suggest if that’s an issue for anyone else listening to this, maybe ask about that and you might get a little bit lucky and there may be a lower bed available for you.
The other issue, kind of again related to height is the height of the sink. Again, it’s very important obviously if you’re a wheelchair user that the wheelchair fit underneath the sink so that your knees are not hitting the sink when you’re trying to go underneath it and you can get nice and close to the sink, but they have gone pretty far and making the sinks really high, maybe overcompensating for the fact that they want to make sure that the wheelchair can fit underneath the sink and that can create issues for those of us who are shorter, not being able to actually reach the sink itself, or even if I can reach the sink, I usually cannot reach the faucet to turn the water on and off, which obviously again negates the ability to be able to use the sink independently.
So it is one of the situations where I think, again, they’re building the sink and maybe they’re meeting the letter of the law or within the letter of the law, but they are not thinking about it from a practical standpoint. And perhaps did not have somebody in a wheelchair actually try to use this before they finished building it.
Another example of that would be the shower. I typically tend to use a roll-in shower instead of a shower with a tub to make the transfer easier again, because there’s usually a bench attached to the wall of roll-in shower, which is great, and those transfers are usually not that hard to do. This is not a situation where there’s a height issue, but you can only sit on the bench that’s attached to the wall. You cannot move it around because it’s literally attached to the wall.
And so the problem there is sometimes where the bench is on one wall and then the shower head where the water would be coming out is on the complete opposite wall. So there’s absolutely no way if you’re sitting on the bench that you could reach the shower head. And in some cases it’s so far away that even if you went to turn the water on first and then transferred to the bench after you turn on the water, the spray of the water will not reach far enough to actually get you wet if you are sitting on the shower bench. And that is very frustrating. It’s amazing how many times that happens even in current day. And again, I think that’s a situation where they’re not thinking about the fact that the person who’s sitting on the shower bench attached to the wall might not be able to move or stand up or get to the other end of the shower to turn it on. So that’s again, where the practical impact is not really being factored in when they create the design for the shower.
Stephanie Flynt:
Yeah, absolutely. And I’m so glad that you pointed out the fact that people do come in different shapes and different sizes. The truth of the matter is, while it sounds like these folks, or at least I like to believe that people who are designing these have very good intentions and want to make these things accessible. But if you’re not consulting directly with disabled people, and I know I’m preaching to the choir when I say this for all six of our listeners to the podcast, but it’s so important that you consult with disabled people because the truth of the matter is that things like these we’re not all the same. We’re not all going to be five foot six and use a wheelchair. And so when it comes to those types of modification, we need to make sure that the accessibility is kept in mind from the onset as opposed to an afterthought or even just not exist entirely.
Amy Scherer:
I couldn’t agree more. I think you said that perfectly and that really is an important part of the process. And it would be great too if going forward, I guess specialists, if I’m focused on the employment aspect of things, I would love to see wheelchair users and other people with disabilities actually enter the architectural field more often or the interior design field so that you would have that perspective built in to the people who are actually designing the hotel room.
Stephanie Flynt:
Absolutely. Well, Amy, it has been an absolute pleasure having you on the PandA Pod. Thank you so, so much for sharing your story and sharing your insight. I know that I found it super valuable and I know that our listeners also have found this super valuable as well. So thank you again for being willing to chat with us today for a few minutes.
Amy Scherer:
Thank you so much. I’m so glad to do it, and I think a lot of it, like you said, is that people have good intentions, and a lot of it is just not necessarily being aware of the issues. So I love to participate in anything that is going to help to raise awareness because I think that’s the key to changes being made. So hopefully that will continue to happen.
Raquel Rosa:
And finally, joining us, we have Michelle Uzeta. She is the Deputy Legal Director at the Disability Rights Education and Defense Fund, also known as DREDF. She has specialized in civil rights law since 1993 with a particular emphasis on disability rights and fair housing litigation. Michelle has years of experience working in private practice and has previously served as the legal director of the Disability Rights Legal Center, the litigation director at the Southern California Housing Rights Center, and an associate managing attorney at Disability Rights California. Michelle’s practice has focused on the litigation of high impact lawsuits and representation of individuals facing discrimination under the Americans with Disabilities Act, Section 504, Fair Housing Amendments Act, and related state laws.
In addition to her role as litigator, Michelle has lectured and written extensively on the legal rights of people with disabilities and has authored a number of amicus briefs on disability rights issues. Michelle is a graduate of Stanford University and has earned her JD from King Hall School of Law at the University of California Davis. And shout out to Disability Rights California and Disability Rights Hawaii as Michelle worked there too. And to kick off our questions, I’m going to kick it over to our other Michelle, Michelle Bishop.
Michelle Bishop:
Great minds we find are often named Michelle, so it’s not a surprise. Michelle, thanks so much for joining us today. I was wondering if you could kick us off by telling us about Title III of the ADA and what mechanisms we have for enforcement of its provisions.
Michelle Uzeta:
Sure. And thank you for having me. It’s a pleasure to be here. So the ADA, the Americans with Disabilities Act is a comprehensive federal law that prohibits discrimination based on disability, and the way that the law is set up it has what they call titles, which are like chapters in the book. And Title III is the chapter that prohibits discrimination by private businesses, otherwise called sometimes places of public accommodation. So that’s the title that we’re really focusing on at the current time because that enforcement of people’s rights under Title III are under attack. The ADA is enforced in two primary ways.
The first is through the government, and here I’m talking about both the federal and local governments that enforce state laws that are similar to the ADA and then through private individuals who have experienced discrimination. The ADA is a remedial law. It was enacted to remedy a history of discrimination, and as such, it was specifically written to include a private right of action, which means that people with disabilities whose rights are violated can seek relief in court. And Congress made private enforcement the primary method of obtaining compliance with the ADA, simply because there’s so many businesses that are in the United States, it would be impossible for the Department of Justice or federal government to enforce the law as to all of those businesses.
Michelle Bishop:
So the ADA is over 30 years old at this point. How is it going?
Michelle Uzeta:
How’s enforcement going?
Michelle Bishop:
Absolutely. Is it working?
Michelle Uzeta:
It’s hard to say. I’ve been practicing disability law for 30 years. So I came onto the scene right around the time that the ADA has, and I haven’t really seen violations slow down, which is unfortunate. I’d say that enforcement is ongoing and consistent. It has to be because discrimination doesn’t rest. Enforcement also really depends on the administration in office and their priorities, whether disability rights or civil rights generally are within their priorities and what the resources are both financial resources that are being put into enforcement efforts and staffing.
I’ll note that there was a progress report done by the National Council on Disability published in 2019 that revealed consistently declining budget levels and a 24% drop in staffing for the Civil Rights Division, which is the division that focuses on disability rights between 2010 and 2018. There’s no more recent data, but those kind of cuts or drops in resources and staffing are concerning because enforcement can’t happen when your resources are declining and there’s no staff dedicated to doing enforcement. So in that context, it’s even more important that people with disabilities in the community be permitted to enforce their rights and not have their right to bring actions based on the ADA infringed or restricted in any way.
Raquel Rosa:
So Michelle, pivoting over to hoteling while disabled. I was wondering if you could tell us some stories you’ve heard and examples you could share about this experience.
Michelle Uzeta:
Well, it really runs the gamut so you have people who are trying to use online reservation systems because most of the hotels use online reservation systems at this point, and they can’t find any information about whether there are accessible rooms or accessible facilities, accessible parking, passive travel. And this is all information that the ADA requires hotels to include on their online reservation system so people with disabilities can make reservations at the same times and with the same ease as people who do not have disabilities. So that’s one kind of frustration that people experience.
A related frustration is you don’t see the information about accessibility online. So you pick up the phone and you call, and the person on the other side of the line has no idea what you’re talking about. Oftentimes, you’re routed to a main reservation system that isn’t onsite at the particular hotel you’re trying to get information on. And so they don’t know they aren’t onsite. They have no idea about the accessibility of the facilities. They can’t give you the information.
Sometimes you call and you are given wrong information. You’re told, “Oh yeah, we have accessible rooms. Oh yeah, the room you’re reserving is going to be accessible.” And then it turns out not to be. And even when you make a reservation online and you’re told that you have a accessible room guaranteed, and then you arrive on site after a long day of travel and you find out that the room that you reserved is not actually accessible. And this experience just happened to me recently. I have a family member with mobility impairments who required a walk-in shower and an accessible restroom with grab bars, et cetera, reserved an accessible room online, confirmed the accessible room day before travel. When we arrived, we found out that the bathroom had a tub that was unusable by my family member.
There were no grab bars and everything that had to be operated in the restroom required you to pinch and turn things, which my family member could not do due to their disabilities. This was the accessible room, even after I pointed out that lack of accessible features I was told, “But that’s the accessible room.”
So it is really difficult for people with disabilities when they travel. It’s really a crapshoot. You never know if you’re going to actually get an accessible facility. And that’s an added layer of stress on travel. Travels always stressful for people even when they go on vacations and things. The idea of traveling and not knowing where you’re staying, if it’s going to work for you, whether you’ll be able to shower, that’s just something that people shouldn’t have to deal with.
Michelle Bishop:
Michelle, can you tell us what’s at stake? Why are we collecting these stories right now?
Michelle Uzeta:
So we’re collecting these stories right now. It’s been a long, long, long hard fight against the business community to get them on board with not villainizing ADA plaintiffs and the disability community, and to really refocus their efforts on educating their business members and letting them know about tax credits and other ways of making their businesses accessible, encouraging voluntary compliance with the law. So we’re collecting these stories to counter in large part the business community’s narratives that they’re throwing out. And it’s at this particular time because there’s a case that I’m assuming we’re going to talk about that’s going to be argued before the Supreme Court in a couple of months. So the business community has been really vigilant about villainizing people with disabilities and their attorneys and trying to take down the ADA, talking about how it needs reform and how it’s so unfair to businesses who want to comply but don’t know how.
So we want to, I guess, humanize the issues to let people know these are not minor inconveniences when you don’t comply with ADA standards, the ADA standards are the bare minimum that the government decided provides accessibility. And oftentimes, it’s not enough to provide accessibility, but it is the bare minimum. And these standards have been around for 33 years. There’s really, really no reason that people should not be complying with the law at this time. And people just wait. They wait to get sued, and then they complain about being sued. They just don’t want to make their businesses accessible. And we do want people to tell the stories. We do want people to explain how they’re deterred from going out into the community. They’re deterred from going out to dinner with their family. They’re deterred from going on vacation because everything’s inaccessible to them. And these are folks that the business community should want to have as customers. They have money to spend, but they don’t. They just don’t see it so there’s this large disconnect again with, as I said before, people not getting how access impacts our community. So we’re trying to get the stories out to give a real flavor and a face to these issues that we’re complaining about. It’s not just measuring inches and slopes. You’re really impacting somebody’s life when you don’t make your business successful.
Michelle Bishop:
And there is a Supreme Court case around this. Can you tell us a little bit about it?
Michelle Uzeta:
Right. So in October, the Supreme Court is going to be hearing a case that deals with ADA enforcement, and it’s called Acheson, which is the name of a hotel here versus Deborah Laufer. Deborah Laufer’s a person with physical disabilities. She uses a wheelchair and she has filed hundreds of cases against hotels nationwide for failing to comply with the ADA’s requirement that hotels include certain accessibility information on their websites as part of their reservation system. So Ms. Laufer is what you would call a tester in these types of cases in that she doesn’t have an immediate intent to visit the hotels she’s suing, but rather she puts herself voluntarily in a situation to experience discrimination by visiting the hotel’s websites to check for compliance with the requirement that they include accessibility information in their reservation system. And when the hotels don’t have that information, she sues them so they change their policies and they put the information there for the next person who visits the website to try to make a reservation and go on vacation and visit the hotel.
Tester standing has been recognized and acknowledged in ADA cases for some times and in the context of fair housing and other civil rights cases for a very long time. But the courts at this point in time are split on whether ADA testing should be recognized in ADA cases… Oh sorry, whether testing should be recognized in ADA cases, and in particular, under circumstances like Ms. Laufer’s where she doesn’t have an immediate intent to visit the hotels whose reservation systems she’s visiting. So we’re arguing in that case DREDF and other disability organizations are filing an amicus brief in the case. And actually our brief is going to be filed tomorrow. And our brief is just providing a history of testing, putting forth information about why testing is important in ADA enforcement, and how private enforcement is really necessary to achieve the ADA’s goals of access to the community.
And we also are addressing the issue that someone like Ms. Laufer who’s a tester, who puts themselves in a position to experience discrimination, does actually experience discrimination, and that discrimination causes dignitary harm. And that type of harm is something that gives her what they call standing or the ability, legal ability to file a lawsuit. Because when Ms. Laufer visits these websites and sees that the information’s not there, it sends a message to her and to other people with disabilities who visit the website, which is, you don’t belong here, you’re not welcome at our hotel, we don’t think that you’re a customer that we need to encourage to come to our hotel. You just aren’t wanted here. And that does cause dignitary harm.
There’s been a lot of studies about how the marketplace and how different things signal to people, whether or not they are welcome and belong in the marketplace. And those aren’t just physical things like stairs or something like that that would preclude somebody from entering, but also policies that tend to exclude people and not putting information that’s required on your website is a policy that tells people with disabilities, we don’t want you here, we don’t care about you as a customer.
Michelle Bishop:
So Michelle, can you tell us why should our listeners care? What’s really at stake here?
Michelle Uzeta:
I would say that ADA enforcement is at stake. So the future of accessibility is at stake. I mean, if you consider the fact that businesses are still highly inaccessible, I would challenge anybody to just walk a couple of blocks or roll a couple of blocks and count the number of barriers that you encounter. Inaccessibility is still widespread. We need people to challenge that inaccessibility. So if the courts are further narrowing, who has the ability to enforce the law, we’re just not going to have enforcement. And as we talked about a little bit earlier, government is ill-equipped to handle the sheer volume of inaccessibility that is out there, and businesses are not voluntarily complying with the law.
Testers are really, really important too. I really want to stress that there’s this narrative out there that people with disabilities are very willing and eager to file lawsuits, and this is a false narrative.
Litigation is difficult to bring. Cases are really, really stressful for people, and they’re expensive. There’s filing fees, there’s service fees, there’s deposition costs, there’s a lot of costs that go into filing suit and Title III of the ADA does not have a damages remedy. So you’re not coming out of a lawsuit with money in your pocket. That just is not happening. There’s no guarantee that you’ll recover your attorney’s fees. The Supreme Court has already ruled in another case that if a defendant moots out the case, meaning they remove the barrier right at the beginning of the case, they can move to have the case dismissed on the basis that there’s no longer a dispute, and in that case, you don’t get your fees. So you may go through the process of informally trying to get somebody to remove barriers. They don’t do it. You file suit, you pay these costs to file your suit, and then they remove the barriers and take away your ability to recover your attorney’s fees, and then you’re actually out of pocket money.
So no one is beating down doors to be able to file enforcement actions. It’s not something that the average person with disabilities wants to do. And in addition to that, ADA plaintiffs and their counsel are often villainized and their motives are questioned, their characters are questioned. That takes a toll on your mental health. Businesses have become really, really indignant about being sued even when they acknowledge that they have violated the law. They refer to cases as being meritless, as being frivolous, and when you really look at these cases, there are actual violations there. The cases are not meritless, they’re not frivolous. Businesses are just really, really pissed off that people with disabilities are taking them to task for their ongoing failure to comply with the law.
So yeah, that’s what at risk. We have these few people, these serial litigants, who are willing to take on the burden of ADA enforcement. And that’s not to say that every serial litigant is a good guy. I mean, there are people out there who engage in what they would call bad faith litigation tactics or doing things that are not quite above board. But the majority of people who file numerous lawsuits are people who are actually trying to make a difference. They view themselves as advocates. They are advocates, and if they’re doing things the right way, there’s no reason why their serial litigation should be frowned upon. They’re taking on the burden of enforcing the law for those of us who don’t have the means to do so, and they serve an important role in the community to make the community more accessible for everybody.
Raquel Rosa:
Thank you for spending time with us today. Thank you for fighting the good fight. I think I speak for all of us when I say how much we appreciate you for being with us and being in solidarity with us. Thank you, thank you, thank you.
Michelle Uzeta:
Thank you. Appreciate it.
Michelle Bishop:
Well, thank you to all of our guests. That was a really fascinating and informative episode of the podcast. And now for everyone’s least favorite time of the month, Stephanie, tell us a joke.
Stephanie Flynt:
Don’t you mean most favorite time of the month?
Michelle Bishop:
That’s absolutely what I meant to say. Sorry. Verbal typo.
Stephanie Flynt:
Yeah, can you make sure to edit her whole thing out?
Okay. So for my joke this week, it’s more of a story joke, but I’m not sure what category you guys want to utilize. So pick a category between fast food and a department stores.
Michelle Bishop:
I’m terrified, Raquel. Make the decision.
Raquel Rosa:
I’m saying fast food.
Stephanie Flynt:
All righty. Okay, so this old couple, they go into this restaurant and they get a small burger and french fries, and they go sit down at their usual table so that they can eat that. Now the guy, the man ends up, this is a heterosexual couple, sorry, I should have specified, but the man sits down and eats some of the burger and the french fries, and there’s this person who comes up to them and they offer to buy them a separate meal. And the lady who was not eating the burger and fries declined. And this person who of course is trying to do this good deed and trying to make sure that both of them are fed, keeps going, “Well, why? What do you mean? Why don’t you? I’m happy to buy you a separate meal. It’s really okay. This is a very small meal that you guys are sharing.” And the lady says, “Oh, well, the reason is because I’m waiting on the teeth.”
Anyone get it?
Raquel Rosa:
Waiting on the teeth?
Michelle Bishop:
What is happening?
What?
Stephanie Flynt:
They’re sharing dentures.
Raquel Rosa:
Oh, no.
Michelle Bishop:
Stephanie.
Raquel Rosa:
Oh, no.
Michelle Bishop:
First of all, these jokes get longer and longer. It’s just turning into weird story time.
Raquel Rosa:
Oh my gosh.
Stephanie Flynt:
Sorry guys. Anyway, that’s my joke for the week, and I’ll work on making them shorter next time per Michelle’s request.
Michelle Bishop:
Complaints about the disorganized nature of this podcast and terrible joke telling as always, can be sent to [email protected]. Jack, tell the people how they can follow us on social media.
Jack Rosen:
You can follow us at NDRN Advocates on Twitter, Facebook, Instagram. You can also follow us at National Disability Rights Network on LinkedIn. Until next time, folks.
