Don’t look a gift (card) in the mouth – next wave of ADA accessibility litigation targets gift cards

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Multiple retailers and restaurant groups are facing a spate of recently filed class actions alleging violations of the Americans with Disabilities Act (ADA) for their failure to offer gift cards containing Braille that are accessible to the blind and visually impaired. In just the last few weeks, approximately 40 lawsuits have been filed by a handful of plaintiffs’ firms, some of the same firms responsible for the ongoing deluge of website accessibility class actions, against companies in the retail and hospitality industries alleging ADA violations related to their gift cards. The novel theory reflected in these suits raises questions concerning the limits of what constitutes a good or service of a place of public accommodation, and the actions businesses must take to “effectively communicate” with disabled customers. Given the volume of these suits and the seemingly expanding list of companies targeted, it is important for any company that offers gift cards to understand the requirements of the ADA.

ADA background

Title III of the ADA, enacted in 1990, prohibits discrimination against the disabled, which includes the blind and vision impaired, in places of public accommodation:

No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.

42 USC § 12182(a). Although Title III of the ADA does not provide civil penalties for violations of the Act, it does permit private rights of action and allows individuals to bring enforcement actions, seek injunctive relief, and recover costs and attorney’s fees. 42 USC § 12188.

The ADA does not provide specific metrics or standards for accessibility, but the Department of Justice (DOJ), the agency responsible for enforcement of the ADA, has issued regulations requiring that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”1 “[A]uxiliary aids and services” include “[b]railled materials and displays” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.”2 The DOJ has clarified that these provisions require “effective communication.” 28 CFR § 36.303(c)(1).

Gift Cards

In the last few weeks, multiple lawsuits have been filed including, but not limited to, suits against McDonald’s, Express, Nordstrom, Hooters and other retailers alleging that the companies’ gift cards are inaccessible to the blind because they do not contain writing in Braille.

The suits allege that the businesses are in violation of the ADA and related state statutes for their “failure to sell store gift cards to consumers that contain writing in Braille” or otherwise in a format that would allow the cards to “be fully accessible to and independently usable by Plaintiff and other blind or visually-impaired people.”3 Although the ADA does not specifically address gift cards, or similar specific programs offered by places of public accommodation, the suits allege that the failure to make the cards independently accessible deprives blind and visually impaired customers of equal access to the goods and services of the establishments.

While the suits concede defendants may make employees available to assist visually impaired customers with the purchase or use of gift cards, they contend that such assistance does not constitute effective communication in light of the relative ease of making the cards independently accessible through the addition of Braille.

The novel theory advanced in these suits raises questions concerning whether all goods or services, like gift cards, offered by places of public accommodation must be independently accessible to disabled customers or whether providing employees to assist disabled customers with the purchase of those products meets a business’s requirement under the ADA to provide “effective communication.”

Because these suits have only recently been filed, it may be some time before answers to these questions are definitely reached. Moreover, individual settlements, which have been frequent in website accessibility class actions filed by the same plaintiffs’ counsels, may limit any decisions on the merits and could incentivize the filing of additional suits.

Conclusion

The large number of businesses facing suits related to their allegedly inaccessible gift cards illustrates the potential litigation risks that consumer-facing establishments face under the ADA. As the merits of these suits remain unresolved and new suits continue to be filed, it is important for all businesses to understand their ADA compliance obligations. 

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1 28 CFR § 36.303(c)(1)

2 28 CFR § 36.303(b)(2)

3 See e.g., Calcano v. McDonald’s Corporation, Case No. 19-cv-9836 (SDNY Oct. 24, 2019)

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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