Loyola University Chicago School of Law, JD 2021
Over the past year, restaurants and retailers have had to improve access to their physical locations, websites, and mobile applications to ensure that they are accessible to all individuals and comply with the Americans with Disabilities Act (ADA). Now, restaurants and retailers may have another issue that they need to grapple with in order to comply with the ADA – including braille on gift cards.
Beginning on Thursday, October 24, 2019, an influx of putative class actions on behalf of individuals who are blind or have low vision began to flood the dockets of the New York federal courts. Specifically, between October 24 – 27, 2019, 33 putative nationwide class action cases were filed in two U.S. District Courts in New York against several retailers and restaurants alleging that they do not offer gift cards that include braille. The complaints assert that failure to include braille on physical gift cards violates Title III of the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law. Since October 24, 2019 over a hundred nearly identical lawsuits have been filed by the same named plaintiffs and law firms in the Southern and Eastern Districts of New York.
What is braille?
Braille is a system of raised dots that can be read with the fingers of individuals who are blind or who have poor vision. Braille is not a language; rather, it is a code by which many languages may be written and read. Braille was invented by Louis Braille, a student of the National Institute for Blind Youth in Paris, France, when he was fifteen. The standard system used for reproducing most textbooks and publications is contracted braille, in which system cells are used individually, or in combination with others, to form a variety of contractions or whole words.
Title III of the ADA
According to the Americans with Disabilities Act ,“Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of twelve categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards.” The ADA, which became law in 1990, ensures that individuals have the same rights and opportunities as everyone else. This includes, but is not limited to, the right and opportunity to participate and enjoy common activities such as enjoying a meal at a restaurant, attending a concert, shopping – both in store and online, and attending a sporting event. Companies have had to comply with Title III to ensure that all individuals, including individuals with disabilities, have access to their products and their business generally.
A new era of ADA compliance
The U.S. Department of Justice (DOJ), which enforces Title III of the ADA, and federal courts have never addressed the issue of whether gift cards should be offered in braille in order to comply with the ADA. The DOJ has recognized for quite some time that a public accommodation may choose between various auxiliary aids and services to ensure that individuals with disabilities receive effective communication. Restaurants do not have to provide menus in braille in order to comply. Rather, they can offer an individual assistance in reading the menu. Some of the defendants targeted by the plaintiffs offer electronic gift cards which can be an accessible alterative to providing braille on physical gift cards.
The plaintiffs uniformly allege that they are blind and when they contacted the defendants to inquire as to whether they provide gift cards in braille, the companies responded that they did not, so the plaintiffs filed lawsuits. The plaintiffs contend that failure to provide braille on gift cards denies individuals with vision impairments or who are legally blind, equal access to the products and services offered by the place of public accommodation, as the gift cards are not “fully accessible to and independently usable by” individuals with vision impairments. They assert that individuals with vision impairment cannot purchase gift cards because they are unable to review important information on gift cards such as the company where the individual can redeem the gift card, the balance of the gift card, and the terms and services of the gift card.
Likelihood of future litigation
As of the end of October 2019, plaintiffs have only filed claims in the federal courts in New York. However, given the popularity of gift cards and the recent influx of ADA litigation, retailers, restaurants and other entities offering physical gift cards may be impacted by the outcome of these cases. These cases may also impact other forms of cards such as credit cards, debit cards, and transit cards.