ADA Issue on Gift Card Accessibility for People with Disabilities

It is a little-known fact that, in 1994, Blockbuster video was the first store to display pre-paid gift cards for sale. Unlike VHS rentals, the gift card industry has only grown in popularity. Gift cards from major retailers are at the top of many holiday wish lists. Considered more polite than cash, gift cards take the stress and guesswork out of holiday shopping. They also allow recipients to skip the dreaded “returns” line and choose the specific items, models, sizes, colors, etc. they desire.

With the holidays approaching, gift cards have found popularity with an unexpected audience: plaintiffs’ lawyers. In late October, a small number of plaintiffs filed over 100 virtually identical class action lawsuits in New York federal courts. These lawsuits allege that retailers, restaurants, and other businesses have violated Title III of the Americans with Disabilities Act and the New York City and State Human Rights Laws by failing to provide gift cards with Braille, the tactile writing system of raised dots that can be “read” by people who are blind or have low vision. Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against disabled persons in places of “public accommodation.” Generally, businesses that provide goods or services to the public must provide disabled individuals with the same type of access to those goods and services as they provide to individuals who are not disabled, and must remove certain existing barriers to access. Although individuals may have legitimate claims under Title III—and the overall goal of increasing accessibly is laudable—the majority of these lawsuits are filed by serial litigants and a small group of attorneys who are apathetic about the substantive claims and, instead, focus on quick settlements for nuisance amounts. The incentive for these serial litigants is the ADA’s private enforcement incentive: plaintiffs who prevail on their claims generally recover attorneys’ fees, expert witness costs, and other legal expenses. Although the ADA was enacted long before the ubiquity of websites and e-commerce, retail and hospitality businesses are targeted frequently with claims that their websites (and mobile applications) are inaccessible to blind and visually-impaired individuals. Using similar reasoning with gift cards, plaintiffs have alleged gift cards must be “independently accessible” and they and all other legally blind individuals have been denied the right equal access to goods and services available with gift cards.

In addition to statutory and punitive damages, and attorneys’ fees, the plaintiffs request that retailers modify their policies, practices and procedures and provide auxiliary aids and services necessary for effective communication. These requests include that (1) the name and denomination of every retail gift card and its packaging be printed in Braille; (2) other pertinent information, such as terms of use, privacy policies, ability to ascertain gift card balance, and restrictions be printed in Braille on the card, affixed to the card or inserted in the packaging; and (3) the size and texture of Braille gift cards be different from regular gift cards to allow blind and visually impaired consumers to find them. The novel theories advanced in these lawsuits are distinguishable from claims against websites and mobile applications and attempt to stretch the ADA beyond the current scope of the statute, regulations, and court decisions. It is too early with these lawsuits to know whether this novel theory will gain any traction. However, retailers should be aware of these and other ADA-related issues.