Restaurants and retailers working to ensure their physical locations and websites are accessible and comply with the Americans with Disabilities Act (ADA) may now have another issue to contend with – gift cards.
Recently, visually impaired plaintiffs filed a rash of class action lawsuits in the New York federal courts against restaurants and retailers alleging violations of the ADA because their gift cards are not available in braille. The lawsuits also include claims under the New York State and New York City Human Rights Laws.
This latest wave of ADA accessibility litigation appears to be the result of one law firm (and co- counsel in certain cases) filing approximately 46 cookie-cutter complaints on behalf of seven plaintiffs between October 24, 2019, and October 31, 2019. We expect these lawyers to file many more cases over the coming weeks and months, and that other law firms will jump on the bandwagon and begin filing similar class action claims.
In the lawsuits, the plaintiffs allege that they are legally blind and require braille to read written materials. They contend that store gift cards are generally the same size and texture as credit cards, and, therefore, are indistinguishable by a blind person from credit cards or other store gift cards. The plaintiffs claim that they are deterred from visiting the stores and restaurants at issue and denied the equal enjoyment of those locations because they are unable to purchase a braille gift card for use at the stores and restaurants.
These recent filings may be the first claims asserted regarding the accessibility of gift cards, and there do not appear to be any published court decisions
addressing the question of whether businesses must offer braille gift cards to comply with the ADA. Moreover, the ADA and its implementing regulations do not directly address this issue, and these claims beg other questions. For example, if gift cards must be in braille, as these plaintiffs allege, then what about product tags, labels, or credit cards?
The ADA generally provides that “[n]o 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.” 42 U.S.C. § 12182(a). However, the ADA also contains an exemption “where compliance would ‘fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.’” 42 U.S.C. § 12182(b)(2)(A)(iii).
In support of these general principles, ADA regulations require that places of public accommodation, like stores or restaurants, provide “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 C.F.R. §36.303(c)(1). However, “the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication.” 28 C.F.R. §36.303(c)(1)(ii). While “brailled materials and displays” are examples of auxiliary aides and services, public accommodations are not required to “alter [their] inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities,” such as braille versions of books. 28 C.F.R. §36.307.
It is unclear how these and other applicable provisions will be applied to gift cards, and it is unlikely that a court will make a determination regarding the viability of these claims any time soon. Similarly, we do not expect the legislature to take action in the near future. Therefore, businesses should review their policies and practices with respect to the design, sale and issuance of gift cards (both physical and electronic) and consult with counsel regarding how they may be able to mitigate their risk of litigation or respond to such claims.
Businesses looking to avoid being a target in this new wave of ADA litigation may consider:
doing away with offering physical gift cards;
offering electronic gift cards in an accessible format that can be read with a screen reader; or
redesigning their gift cards to include braille text or in some other way to avoid any argument that a visually impaired person could not distinguish them from credit cards or gift cards from other retailers
For more information about this Alert, please contact Jason B. Jendrewski at 212.878.7952 or firstname.lastname@example.org, Alexander W. Bogdan at 212.878.7941 or email@example.com, or any other member of Fox Rothschild LLP’s Hospitality Group. Visit us on the web at www.foxrothschild.com.