Student Note on Tester Standing and ADA Title III

Just out: Leslie Lee, Note, Giving Disabled Testers Access to Federal Courts: Why Standing Doctrine is Not the Right Solution to Abusive ADA Litigation, 19 Va. J. Soc. Pol'y & L. 319 (2011).  The abstract:

Over twenty years after the enactment of Title III of the Americans with Disabilities Act (“ADA”), its promise of providing access for the disabled to places of public accommodation has remained unfulfilled. This likely stems from the wide under-enforcement of Title III; though Title III creates a private right of action for disabled individuals to sue for enforcement, the few individuals who do bring suit are often turned away for lack of standing. Perhaps these suits face skepticism and harsh scrutiny from courts because Title III suits are viewed as a “cottage industry” formed by a few profit-driven individuals who have no interest in actually removing barriers to access. Standing, however, is not the right solution for curbing these abusive practices. 

This Note will argue that ADA “testers,” disabled individuals who travel across the country searching for ADA violations and bringing suit, should have standing to sue under Title III. The statutory language and legislative history of Title III suggest that Congress intended for testers to have standing to sue, and traditional standing doctrine as applied to Fair Housing Act and equal employment testers suggest that testers should have standing. This Note will argue that the primary reason for skepticism towards ADA testers stems from practical problems with the application of Title III - specifically an under-enforcement problem and a professional plaintiff problem. The under-enforcement problem stems from the lack of incentive for most disabled individuals to bring suit, and the small number of lawyers with the Attorney General who are dedicated to ADA suits. The professional plaintiff problem arises because, in order for Title III suits to be worthwhile for a plaintiff and his or her attorney, they must file many suits against many places of public accommodation, which often results in profit-driven, rather than access-seeking, litigation. These problems can be resolved by revising Title III to clearly give testers standing to sue, and employing other mechanisms, like attorney's fee-shifting, vexatious litigant sanctions, and compliance certification, to curb abusive litigation.