Legal Docket: Disability access and legal standing

NICK EICHER, HOST: It’s Monday morning, October 16th and you’re listening to The World and Everything in It from WORLD Radio. Good morning! I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. It’s time for Legal Docket.

Today, we’ll cover two disputes before the U.S. Supreme Court argued this month.

And one began like this:

ROBERTS: Mr. Scalia?

SCALIA: Thank you, Mr. Chief Justice, and may it please the court ...

You heard that right! Mister Scalia would be Eugene Scalia, son of the late Justice Antonin Scalia. The younger made his first argument before the Supreme court in a case called Murray v UBS Securities, LLC.

It’s a case about a financial expert who worked for UBS Bank. The “Murray” in this case is Trevor Murray. His job was to report on the markets to the bank’s customers with regard to its commercial business in mortgage-backed securities. Under regulations by the Securities and Exchange Commission. Those who prepare these reports must certify that they reflect their own views, independently prepared.

EICHER: But Murray says higher-ups pressured him multiple times to skew his research to support UBS business strategies. He refused, and published his reports as he saw fit. Murray reported the pressure he received to his immediate supervisor.

Eventually, Murray got fired.

REICHARD: Murray saw that as unlawful retaliation, so he sued the bank under a law called Sarbanes-Oxley. It forbids employers from taking adverse actions against workers who lawfully blow the whistle.

But the bank says Murray doesn’t qualify to sue under that law, because he didn’t claim he reported the misconduct to the SEC.

Now the question before the high court is who has to prove what. In other words, who bears the burden of proof?

Is it Murray’s burden to prove his employer had retaliatory intent when it fired him? Or does the bank have to prove that it did not?

Lawyer Easha Anand represented Murray. She argued the answer of who has to prove what is in the plain text:

ANAND: Congress passed the Sarbanes-Oxley Act in the wake of the Enron meltdown to encourage whistleblowers to report misconduct that could threaten the finances of millions…

Congress believed that employees shouldn't have to have evidence of what was in the head of the decision-maker at the moment of the decision before the burden shifted.

EICHER: Arguing it’s enough for Murray to show he was fired around the time when his employer found out he was blowing the whistle.

On the other side for the bank, lawyer Scalia argued intent and causation are two different things and should be considered separately:

SCALIA: In Sarbanes-Oxley, Congress employed a phrase, “discriminate because of,” that has long been recognized to require a plaintiff to show discriminatory intent. It is this transplanted phrase with its rich soil that decides this case.

REICHARD: What Scalia called “rich soil” he meant as other employment discrimination laws that place the burden of proof on workers to prove their boss meant to discriminate.

The bank says Murray was fired along with thousands of other employees simply because it needed to cut costs.

EICHER: The Biden administration backs Murray. Assistant to the Solicitor General Anthony Yang argued that discrimination in employment doesn’t turn on intent to harm the employee. It’s enough if whistleblowing is a contributing factor to being fired.

REICHARD: Either way, it seems obvious that none of the justices on the court wants to put off a resolution of the issue and have to revisit this debate later on.

Justice Kagan asked Yang how much of the dispute would remain if the justices decide for Murray.

Listen to this exchange among Yang and Justices Kagan and Neil Gorsuch:

YANG: I don't want to fight you on that, but I think what that may mean is, at some point in the future, we have to ...

KAGAN: Have this conversation all over again?

YANG: Maybe.

GORSUCH: I don't think anybody wants to have this conversation all over again. (Laughter)

YANG: I certainly don't.

However the court decides, employers should exercise caution when firing someone close in time to that person making a whistleblower report. It’s a good idea to have excellent documentation to counter a natural presumption of intent to retaliate.

EICHER: On to our second case, titled: Acheson Hotels v Laufer.

Here are the facts. Deborah Laufer is known as a “tester,” who files disability-rights lawsuits against hotels. She’s sued more than 600 hotels in the past five years for noncompliance with the ADA, the Americans with Disabilities Act.

Laufer is herself disabled and has to use a wheelchair. What she does is pour over business websites to see if they comply with the ADA. Under ADA, hotel websites have to post information about handicap accessibility. The aim is clarity for the disabled so they can know, for example, whether they can get a wheelchair through the door and use the bathroom.

REICHARD: When Laufer visited the website for Acheson Hotels in Maine, she discovered that information was missing. So she sued.

Her lawyer, Kelsi Corkran:

CORKRAN: There is no serious dispute that at the time Ms. Laufer filed suit, Acheson provided no accessibility information on its reservation website, thereby excluding disabled people from using its online reservation services and engaging in unlawful discrimination under the ADA. As Congress recognized, when places of public accommodation fail to take reasonable steps to make their services available to people with disabilities, they signal that disabled people are unwelcome participants in the marketplace and contribute to their day-to-day experience of being isolated, invisible, and ignored.

But Acheson Hotels says Laufer has no right to sue because she didn’t actually visit the hotel in person, and had no plans to do so. In legal parlance, she has no “standing.” She suffered no injury sufficient to support a claim for damages, either.

Here’s the lawyer for the hotel, Adam Unikowsky.

UNIKOWSKY: This Court has held that a person is injured when she is personally subject to unequal treatment. But that requirement is not satisfied by a plaintiff who searches for hotel websites on the internet to check whether they comply with her interpretation of the ADA. The Court should not bless a legal strategy of filing large numbers of lawsuits, settling almost all of them, and abandoning the rare case that threatens to create adverse precedent so as to facilitate the filing of another round of lawsuits.

EICHER: The Supreme Court agreed to answer the question of standing when it accepted the case for review.

But now there’s a wrinkle: Laufer dismissed her case in lower court, even though she won there. She said one of her lawyers had been suspended for unethical behavior. She didn’t want his problems to taint her case.

REICHARD: So the justices shifted from analyzing standing to analyzing mootness. That is, whether the case lost its practical significance because the underlying controversy is resolved. Courts only have constitutional authority to resolve actual disputes.

You can hear what I think the eventual ruling is going to be in these comments from the justices. First, Justice Clarence Thomas.

THOMAS: So why should we decide this? I -- it seems as though it's-- it's finished.

UNIKOWSKY: Well, Respondent has withdrawn her suits. I mean, she hasn't promised not to bring new suits in the future. And if she doesn't, another plaintiff presumably will.

EICHER: Repetitive and unresolved legal questions cost time and money. So why not just go ahead and resolve this?

But Justice Samuel Alito called this case “dead as a doornail.”

Justice Elena Kagan put it even more bluntly:

KAGAN: But, when you look at a case that's dead as a doornail several times over, you know, the case has been dismissed by the plaintiff. The defendant is totally different. The defendant's website, everybody agrees, is now in compliance with the ADA. So this is, like, dead, dead, dead in all the ways that something can be dead.

REICHARD: Justice Amy Coney Barrett expressed concern about wasting resources by punting this case, when the merits are sure to arise again later.

Some discussion revolved around the line drawing for standing to occur: is it enough if Laufer stated in her complaint that she did intend to visit the hotel? How soon? Next month? Ten years?

Pondering that aspect, Justice Ketanji Brown Jackson outlined the categories of people who access online content:

JACKSON: So my thought has been that we need to distinguish between the person who's getting online and they're a documentarian, a passionate observer, a person who's going there just to see, are you following the rules, Hotel X, Hotel B, et cetera, and a person who, I think you're saying, is trying to use the service.

My sense is the court will defer to its practice of only deciding what is before it, no more and no less, and say this case is moot. Which means, it’ll come up again another time and we will get to the conclusion then.

As for practical advice to America’s innkeepers, consider this an early warning to post accessibility information onto your websites, and do it post haste.

And that’s this week’s Legal Docket.

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