A recent spate of suits against several major retailers has raised questions about whether self-service checkouts and other kiosks must comply with the requirements of Title III of the Americans with Disabilities Act (ADA). Generally, Title III requires that places of public accommodation be equally accessible to all individuals, regardless of physical limitations. In these suits Plaintiffs, who are blind, allege that the retailers’ self-service checkouts or kiosks are inaccessible to blind and visually impaired individuals and, therefore, violate the ADA. Businesses, in turn, have countered that the provision of staffed registers and kiosks through which blind customers can complete purchases with the aid of store personnel satisfies their obligations under the ADA. As an ever-increasing number of businesses turn to self-service kiosks for all manner of customer interactions, the degree to which these kiosks must be accessible to disabled users presents an important issue.
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 U.S.C. § 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 U.S.C. § 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 “accessible electronic and information technology” 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 C.F.R. § 36.303(c)(1).
As originally enacted, the ADA did not expressly address self-service kiosks as the technology was in its infancy at the time. In 2010, the DOJ issued rules requiring “Automatic Teller Machines and [airline] Fare Machines” to meet certain accessibility standards including tactile buttons, speech output and Braille instructions.3 These requirements, however, are narrow and have not been extended to self-service kiosks more generally.
Multiple suits have been filed against a variety of retailers and other entities alleging ADA violations based on the alleged inaccessibility of self-service kiosks and/or related terminals (i.e., price scanners). These suits, however, have largely been resolved by private settlement without a determination of whether the kiosks must be independently accessible.
The limited number of cases that have addressed the issue suggest that kiosks need not be independently accessible to blind or visually impaired individuals as long as the place of public accommodation in which the kiosk resides “effectively communicates” with the individuals.
Effective communication can take various forms and may involve, for example, an employee assisting a blind or disabled individual to use the otherwise inaccessible kiosk. By way of further example, in cases filed against two food chains, a blind plaintiff alleged that the establishments violated the ADA because “freestyle” beverage dispensing machines were inaccessible to blind and visually impaired individuals.4 In both cases, the Court found that the ADA does not require the “freestyle” beverage dispensing machines to be independently accessible because the respective establishments’ policies of having employees assist blind or visually impaired individuals with the machines constituted effective communication in compliance with the ADA.5
Businesses faced with recent litigation on this issue have raised similar arguments, contending that the presence of traditional staffed registers, where blind and visually impaired individuals may obtain the same services they would receive at the self-service checkouts, provide effective communication as required by the ADA. Plaintiffs, in turn, have argued that unique privacy concerns associated with a financial transaction prevent staffed registers from offering the same services as self-service kiosks, and thereby fail to satisfy the requirements of the ADA.
As more and more businesses rely on self-service kiosks to replace traditional customer-employee interactions, the application of the ADA to these kiosks will continue to be a pressing concern. While it may be in the best interest of businesses to ensure kiosks are accessible to all users, newly filed cases may provide much-needed guidance to businesses seeking to understand their ADA Title III compliance obligations.
1 28 C.F.R. § 36.303(c)(1).
2 28 C.F.R. § 36.303(b)(2).
3 See sections 707 and 811 of the 2010 ADA Standards for Accessible Design set forth at 28 C.F.R. Part 36, Subpart D (2011) and 36 C.F.R. Part 1191, Appendices B and D (2009).
4 See West v. Moe's Franchisor, LLC, No. 15-CV-2846, 2015 WL 8484567, at *3 (S.D.N.Y. Dec. 9, 2015); West et al v. Five Guys Enterprises., LLC, No. 1:15-CV-02845, 2016 WL 482981 (S.D.N.Y. Feb. 5, 2016).
5 See id.; West, 2015 WL 8484567, at *3.