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Do My Gift Cards Need Braille? Confronting The Latest Trend In ADA Litigation

on Thursday, 20 February 2020 in Technology & Intellectual Property Update: Arianna C. Goldstein, Editor

Retailers, restaurant groups, and other merchants are no strangers to complying with the accessibility requirements of the Americans with Disabilities Act (ADA). Not only have merchants long addressed accessibility issues at their brick and mortar locations, in recent years, they have also worked to meet accessibility challenges presented by the intersection of the ADA’s requirements with new and developing technologies. The best example of this intersection are the websites maintained by merchants and other businesses covered by the ADA, which were the subject of a spate of ADA accessibility claims, leading to technological innovations and changes to websites to accommodate persons with vision, hearing, and speech disabilities. 

Given the new ways emerging technology allows customers to access goods and services, it may come as a surprise to many that the most recent trend of ADA class action litigation does not stem from a new technological innovation, but instead from a method of payment businesses have offered their customers for decades:  the gift card. 

In a wave of class actions filed in New York and California, plaintiffs have brought both ADA and state law claims against merchants alleging that they failed to accommodate visually impaired customers by not providing gift cards in braille. 

The ADA requires that “no individual shall be discriminated against on the basis of disability in the full and equip enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation,” and places of public accommodation include most businesses that would provide gift cards.  On this basis, the regulations interpreting this requirement dictate that places of public accommodation provide “appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.”  Examples of such auxiliary aids include things like “brailled materials and displays.” 

The legal arguments being made in support of these recent gift card lawsuits are similar to the one made in the predecessor lawsuits over website accessibility.  But the argument may be more difficult here since the Department of Justice has long taken the position that websites are covered by the ADA requirements for public accommodations.  The DOJ has not taken a position on whether gift cards are similarly covered by the law.   

Regardless of the potential merit, or lack thereof, of the plaintiffs’ claims, the prospect of facing a class action lawsuit is a serious one for any business as the costs of defending even a frivolous class action lawsuit can be prohibitively expensive. With that in mind, what are some of the steps merchants may take to mitigate the risk of facing a class action suit stemming from their gift cards?

The most obvious answer is for merchants to consider modifying their gift cards to include braille. How hard could that be? The answer may surprise you. The lead time on designing and manufacturing new plastic cards can be months under the best of circumstances. Here, where design changes will not include just the card stock itself but potentially the manufacturer’s own systems, the necessary lead time could be substantially longer and more expensive. Throw in the fact that gift card design and production usually freezes during the holiday months and that providers will have millions of pieces of old card stock on shelves and in production today to account for.  In addition, it could be years before a company seeking to put a braille gift card in the market actually does so. The cost and time involved in such an endeavor is likely the reason that, as of today, it appears to be only Starbucks that includes braille on plastic gift cards.

Another, more immediate step providers can take is to move away from plastic gift cards entirely, to virtual or electronic ones. The move from plastic cards to virtual ones has been increasing in pace in recent years and offers flexibility and other advantages to merchants that plastic cards do not. In the case of making cards accessible to visually impaired persons, unlike a plastic card, a virtual card would allow merchants to utilize innovations like screen readers developed to ensure the accessibility of their websites and to apply those innovations to their gift cards as well.  

Moving to virtual cards, however, is not a cure all, as many point-of-sale systems still are not equipped to accept virtual payment devices. Thus, at a minimum, merchants should review their current policies and practices with counsel to ensure they comply with the existing ADA accessibility requirements and assess the risks, if any, presented by the latest trend in ADA litigation.

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