They are sprouting up everywhere: Kiosks that allow customers to buy tickets, rent DVDs, get boarding passes, check-in at a hotel, count change, and even rent cars without ever having to interact with a human being. These self-service kiosks can be a boon for customers and businesses, but they also create lawsuit exposure for businesses that fail to consider how they will be used by individuals who are blind or have limited mobility.
Redbox’s recent settlement of a class action lawsuit brought by advocates for the blind highlights this thorny issue and the uncertain legal landscape surrounding self-service equipment designed for customer use. Several blind individuals and an advocacy group sued Redbox because its DVD rental kiosks could not be independently used by non-sighted individuals. After two years of litigation and mediation, the parties entered into a class settlement under which Redbox agreed to take the following steps for all Redbox locations in California:
- incorporate audio guidance technology, a tactile keypad, and other accessibility features into its DVD rental kiosks so that blind customers can use them independently at one kiosk at every location within 18 months and at all California kiosks within 30 months;
- provide 24-hour telephone assistance at each kiosk;
- pay $1.2 M in damages to the class of aggrieved persons in California;
- pay Lighthouse for the Blind $85K to test kiosks;
- pay $10K to each named plaintiff in damages; and
- pay $800K in plaintiffs’ attorneys’ fees and costs.
Redbox also agreed to make certain accessibility improvements to its website but notably did not commit to meeting the Web Content Accessibility Guidelines.
The lawsuit and settlement underscore the litigation risk associated with replacing employees with machines, particularly at unstaffed locations. When an inaccessible kiosk is at a location staffed with employees who can provide assistance in a timely fashion, there is less of a need for the kiosk to be independently accessible so long as the assistance can be provided in a timely fashion without compromising a customer’s confidential information. Even then, some individuals with disabilities may still claim that they are being denied equal access because they cannot use the equipment themselves. The situation becomes more problematic when the only way to access a good or service is by using an inaccessible self-service machine and there is no one to provide assistance, or when a customer must reveal confidential information such as a Personal Identification Number (PIN) in the course of obtaining assistance.
Must self-service machines provided for customer use be accessible? This is yet another area of the law that remains murky due to the absence of clear regulations. The ADA’s 2010 Standards for Accessible Design only contain technical requirements for automated teller machines (ATMs), fare vending machines, vending machines, and change machines. These Standards require ATMs and fare vending machines to have accessibility features for the blind (e.g. a tactile keypad for inputs and audio-guided transactions) but do not require (non-fare) vending machines or change machines to provide such features. Instead, the Standards only require (non-fare) vending machines and change machines to include features for people with mobility disabilities (as is also required for ATMs and fare vending machines). To further complicate matters, there are no rules at all concerning other types of self-service equipment that do not fall into any of these categories, such as hotel check-in or car rental kiosks.
While it might be reasonable to assume that a self-service machine does not have to be accessible to the blind if the regulations do not explicitly require it, the Department of Justice (DOJ) has rejected this assumption. In a Statement of Interest filed earlier this year in support of a plaintiff’s lawsuit against a retailer, DOJ stated that point of sale devices must be independently accessible to the blind, even though there are no regulations containing technical specifications for such devices. In support of this position, DOJ cited to the regulations’ requirement that a public accommodation ensure “effective communication” with individuals with disabilities in a manner that preserves their privacy. DOJ argued that to pay by debit card, blind customers would have to disclose their PINs to third parties. DOJ also took the position that having the option to pay by credit card was not equivalent to the debit card option. The court did not rule on this issue because it dismissed the case due to the plaintiff’s lack of standing to sue. However, the clear takeaway is that businesses that provide self-service equipment for customer use that is not fully accessible are at risk of costly lawsuits.
What are businesses to do? When buying new equipment for customer use, it would be wise to consider options that are independently accessible by individuals with a variety of disabilities. If fully accessible machines are not an option because of cost or availability, businesses should put in place standard operating procedures to ensure that customers can obtain prompt assistance in using inaccessible self-serve machines, or implement other methods to effectively communicate with customers with disabilities while preserving their privacy to ensure equal access to the goods and services offered.