A new wave of litigation under the Americans with Disabilities Act (ADA) is hitting business owners. For the last few years, businesses have faced lawsuits regarding the accessibility of their website to the visually impaired. Now, gift cards are have become a target as well. Beginning in October 2019, a number of suits were and are continuing to be filed in federal courts including in New York against various retailers and restaurants. The suits allege that the business owners violated the ADA and New York State and New York City law because they do not offer gift cards with Braille. The plaintiffs are seeking to be certified as a nationwide class action.
The ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The plaintiffs argue that gift cards are “places of public accommodation” under the ADA and New York Human Rights laws. As a result, by failing to include Braille on the gift cards, those with visual impairments are being discriminated against because they cannot purchase cards, distinguish one card from another, see the denomination written on the card, or read the terms and other information printed on the packaging. Although the claims focus on the sale of physical gift cards, plaintiffs may make similar arguments regarding online gift cards in the future.
This is a novel issue for the courts and potentially may have a huge impact on any business that offers gift cards. If they are successful, future claims could be made against credit and debit card companies as well. However, there are several defenses to these claims. Among these are that the cards are not a place of public accommodation and prior law indicates that all goods and services do not have to be accessible to the disabled (e.g., price tags, menus). In addition, it could be argued that there are alternative methods that would provide sufficient access to the visually impaired and requiring businesses to take steps to make gift cards accessible would result in an undue burden (i.e., significant difficulty or expense).
Business owners should stay informed about what happens in these cases. It is also a good idea to review the company’s policies and practices related to gift cards and speak with an attorney about how to mitigate any risks of liability.
If you have concerns about your business, contact Lusthaus Law.