Authored by Jordan L. Matthis
As we gear up for the holiday season, stores are being swarmed with consumers looking to make big purchases… in the form of gift cards. It’s a fairly simple concept: you go to a store, load a pre-set amount of money on a card and take the guesswork out of gift-giving and allow the receiver to have a gift of their choosing. But, a string of recent litigation has changed. how many perceive gift cards. They’re not as simple as one would think.
Over the last few weeks, companies such as Hooters, Lululemon, and Domino’s Pizza are among the dozens of companies named in a slew of class-action lawsuits filed in the Southern District of New York on behalf of “visually impaired” and “legally blind” persons. These near-identical complaints allege that companies’ failure to sell store gift cards with Braille writing to consumers prevents full accessibility to blind and visually impaired people, denies them full and equal access to a store’s goods and services, and violates Title III of the Americans with Disabilities Act (“ADA”). Particularly, the complaints allege that failing include Braille writing on gift cards prevents visually impaired and legally blind persons from distinguishing between gift cards and other types of cards, limits independence, and enables fraud and error.
Generally, 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 by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a). Title III of the ADA includes restaurants, clothing stores and hotels in the extensive list of private entities that are defined as “public accommodations.” These gift card lawsuits seem to have targeted those businesses by alleging both “denial of participation” and “participation in unequal benefit,” as defined in Title III.
Each of the lawsuits seeks a permanent injunction as relief and want companies to change their corporate policies, practices, and procedures to make gift cards accessible to the blind and visually impaired. The litigation will likely focus on Title III’s requirement for companies to take the necessary steps to ensure that no individual with a disability is
[E]xcluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services unless the entity can demonstrate that taking such steps 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).
Despite the argument in the lawsuits, requiring companies to add Braille to their gift cards would be a huge expenditure resulting in an “undue financial burden.” Starbucks is the only known company to have given consumers the option of Braille gift cards since 2013, but at what cost? Moreover, if the courts rule in favor of the plaintiffs, what precedent would this set? If companies needed to include Braille on gift cards to ensure accessibility to visually impaired and legally blind persons, what other things would they need to change? Would punch cards, sales papers, and in-store advertisements require Braille? How about hotels? Would they be required to place Braille on room keys to differentiate them from other cards one might be carrying?
Since neither the federal courts nor the Department of Justice has analyzed these issues, we expect to have a definite answer in the coming years. Until then, it’s likely we will continue to see a rise in lawsuits making these same arguments throughout the country.
About the Author:
Jordan L. Matthis is an Associate at Gordon Rees Scully Mansukhani, LLP, where she focuses her practice in the area of employment litigation. Jordan advises, counsels and represents companies, both large and small, in a wide range of areas including claims involving discrimination, harassment, retaliation and wrongful termination. Jordan’s extensive litigation experience as a former prosecutor provides her with unique tools that she brings in the analysis of each of her cases.