As retailers and restaurants are well aware, the proliferation of website accessibility claims filed by serial plaintiffs’ counsel is not slowing down. But now a new wave of lawsuits—Braille on gift cards—is flooding the New York federal courts.
Starting in October 2019, a handful of plaintiff’s counsel have filed more than 200 putative class action lawsuits on behalf of visually impaired plaintiffs in the Southern and Eastern Districts of New York against retailers and restaurants based upon their failure to sell gift cards with Braille. These lawsuits allege that blind or visually-impaired consumers are deterred from visiting retailers and restaurants because they are unable to purchase or use a gift card to purchase goods or services. Plaintiffs claim that they cannot fully and equally use and enjoy the facilities, goods, and services that are afforded to the general public. Plaintiffs allege claims for violations of the ADA, the New York State Human Rights Law, and the New York City Human Rights Law.
These lawsuits raise the novel claim that a means of payment offered at a retail store must be equally accessible to vision-impaired individuals. Complaints allege that to blind patrons, store gift cards are indistinguishable from credit cards and other store gift cards. The failure to include Braille requires the vision-impaired user to rely upon a sighted person to purchase a gift card and utilize it.
Are gift cards “public accommodations?”
The ADA prohibits discrimination “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). The ADA requires public accommodations to provide at no additional cost “auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities,” unless the public accommodation “can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.” 42 U.S.C. § 12182(b)(2)(A)(iii); 28 C.F.R. § 36.303(a).
There would appear to be serious obstacles to imposing liability under the ADA for the failure to sell gift cards with Braille. It is unclear how a gift card is itself a place of public accommodation; a gift card is simply a method of payment. To the extent that the complaints include claims that the retailers are selling gift cards without Braille for use in their stores, again, it is unclear how that fact establishes liability under the ADA, when the good itself is simply a means of payment, equivalent to cash and credit cards, neither of which have been held to be subject to the ADA; nor are these other forms of payment typically marked in Braille. The ADA requires that vision-impaired customers have equal access to a place of public accommodation; no court has said that all customers must be able to use all goods or services sold to the public.
While we do expect retailers to vigorously challenge these claims, certainty in the form of published appellate decisions may take some time. For the foreseeable future, retailers should be prepared to respond to these claims, as it may be that they comprise the next generation of ADA shakedowns.