Retailers Targeted by Serial Plaintiffs 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're 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're 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, 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.”

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 isn't “always right.” It's 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.

It remains to be see how courts will apply these and other requirements of the ADA to gift cards, and it's unlikely that there will be any guidance or consensus from the courts on this issue in the immediate future. We also don't 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 aren't 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, Esq. is a labor and employment partner, and Alexander W. Bogdan, Esq. is a labor and employment attorney, both with the national law firm Fox Rothschild LLP in the New York office.