Expert Opinion: Retailers Targeted for Failing to Offer Braille Gift Cards

In recent years, many retailers have made significant efforts to ensure that their physical locations, websites, and mobile applications are accessible to customers with disabilities in compliance with Title III of the Americans with Disabilities Act (“ADA”). 

However, retailers now may have another accessibility issue to address – gift cards.  Recently, visually impaired plaintiffs filed over 100 class-action lawsuits in New York federal courts against retailers claiming that they are in violation of the ADA because they do not offer braille gift cards. 

In these “cookie-cutter” 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.  Since the plaintiffs purportedly are unable to buy braille gift cards, they claim that they are deterred from visiting the retailers and denied equal enjoyment of their locations.

These lawsuits may be the first publicly filed claims attacking the accessibility of gift cards, and there do not appear to be any published court decisions addressing the question of whether retailers must offer braille gift cards to comply with the ADA.  Moreover, the ADA and its regulations do not directly address this issue, and the plaintiffs’ claims beg other questions. For example, if gift cards must be in braille, as these plaintiffs allege, then what about product price tags, labels, receipts, or credit cards?

The ADA generally prohibits “places of public accommodation” like retail stores from discriminating against individuals with disabilities by denying them the “full and equal enjoyment” of those stores.  However, the ADA also exempts retailers from their obligations under the ADA if complying would “fundamentally alter” their goods or services or cause an “undue burden.” 

A fundamental alteration is a modification that is so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered. An “undue burden” is one that would cause “significant difficulty or expense.”  There is no bright line test to determine what “significant” means in these circumstances.  The ADA requires a number of factors be examined, including the nature and cost of the action needed to ensure compliance with the ADA and the financial resources of the company, including the financial resources of any parent companies.  Thus, what would constitute a “significant expense” for a mom-and-pop pharmacy, for example, could be much less than it would be for a local pharmacy that is part of a national chain. 

In support of these general principles, the ADA requires retailers to provide “auxiliary aids” if necessary “to ensure effective communication” with customers with disabilities.  However, under the ADA, when it comes to such aids, the customer is not “always right.”  It is ultimately up to the retailer to make the decision as to how it accommodates disabled customers, so long as its method results in effective communication.  While “brailled materials and displays” are examples of auxiliary aids under the ADA, the ADA also provides that retailers are not required to “alter [their] inventory” to include specialized goods designed for individuals with disabilities, such as braille versions of books. 

The Technical Assistance manual published by United States Department of Justice provides retailers with examples of auxiliary aids that can be provided to visually impaired customers.  The manual lists a number of auxiliary aids and services that may be provided to promote effective communication with visually impaired customers, including qualified readers, taped texts, audio recordings, braille materials, large print materials, and assistance in locating items.  The Technical Assistance Manual also illustrates hypothetical situations where retailers and other places of public accommodation may meet the needs of visually impaired guests in various ways. For example:

• To assist a visually impaired customer who is interesting in learning more about the various models of a product on a showroom floor, a store may have that customer;
• A theater may have an usher guide a customer to their seat at a performance in lieu of providing braille tickets; or
• That same theater could provide an audio version of its printed program for a performance instead of providing a braille program.

It remains to be seen how courts will apply these and other requirements of the ADA to gift cards, and it is unlikely that there will be any guidance or consensus from the courts on this issue in the immediate future. We also do not expect the legislature to take action soon.  Therefore, retailers should consider:

• Reviewing their policies and practices with respect to the design, sale, and issuance of gift cards (both physical and electronic);
• Training their employees about how to respond to inquiries about braille gift cards and how to assist customers seeking to purchase gift cards; and
• Consulting with counsel about how they may be able to reduce their risk of litigation or respond to claims that their gift cards are not accessible to visually impaired customers. 

While there may be compelling defenses to these claims, retailers looking to avoid being a target in this new wave of ADA litigation may consider:

• Redesigning their gift cards to include braille text (or offering at least some gift cards with braille text);
• Terminating the sale of physical gift cards; and/or
• Offering electronic gift cards in an accessible format that can be read with a screen reader.

Jason B. Jendrewski is a partner at Fox Rothschild LLP and can be reached at [email protected]; Alexander Bogdan [email protected] is a counsel with the firm.