We have previously highlighted the wave of “website accessibility” lawsuits filed under the Americans with Disabilities Act (the “ADA”). In the past month, we have witnessed the next wave of ADA lawsuits—this time targeting retailers’ failure to sell gift cards embossed with Braille.
These are the first cases we are aware of alleging that a retailer’s failure to sell gift cards embossed with Braille violates the ADA and related state laws. Enterprising plaintiffs’ lawyers have targeted the $400+ billion gift card industry, asserting that gift cards without Braille are not equally accessible to blind and visually-impaired customers.
Given the novelty of these lawsuits, there is significant legal uncertainty as to whether retailers are required to sell Brailled gift cards. The Department of Justice regulations implementing the ADA provide that a “public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the business 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.” 28 C.F.R. § 36.303(a). “Auxiliary aids and services” are defined to include “Brailled materials and displays.” 28 C.F.R. § 36.303(b)(2).
The key question in these lawsuits will likely be whether it would be unduly burdensome to require retailers to emboss their gift cards with Braille. Plaintiffs have alleged that it is “simple and inexpensive” to add Braille to gift cards. Notwithstanding, there is apparently only one gift card currently on the market that contains Braille(issued by Starbucks).
Until courts issue rulings in these novel lawsuits, plaintiffs’ firms will likely leverage the uncertainty in the law to pressure companies to settle—as has been the case with website accessibility lawsuits.