During the past month, major retailers have been hit with a new wave of suits alleging that they discriminate against people with visual disabilities in violation of the Americans with Disabilities Act (“ADA”) by failing to sell gift cards that are embossed with braille: the system of raised dots that enable reading by touch. This comes in the wake of a tsunami of website accessibility suits, which itself shows no sign of abating.
The gift card accessibility suits give rise to a host of legal and factual issues concerning just how far the ADA requires a retailer to go in providing written materials in alternative formats. For example, assuming that gift cards must be made accessible, what format is sufficient? Not all people with visual impairments read braille. Is a retailer required to produce a gift card in large print? What about gift cards for individuals with other disabilities that prevent them from reading?
If courts determine that the ADA requires retailers to provide braille gift cards, the possibilities for spinoff litigation are almost infinite. If gift cards must be made accessible, why not product tags or packaging, coupons, or store signage?
The ADA provides retailers with some potential defenses. For example, the ADA’s implementing regulations require businesses to “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 . . . “ 28 C.F.R. § 36.303(a). “The term ‘auxiliary aids and services’ includes—. . . Brailled materials and displays . . . or other effective methods of making visually delivered materials available to individuals who are blind or have low vision[.]” 28 C.F.R. § 36.303(b)(2). Thus, retailers might be able to limit their exposure by providing alternatives to physical gift cards, such as apps, or by providing alternative ways for people with visual impairments to access the information contained on a physical gift card, so long as those alternatives are “effective.”
Additionally, a business is not required to take steps to make resources accessible if it can show 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). Demonstrating that this exception applies, however, is going to be fact-intensive. And, given the general trend towards requiring greater accessibility, the bar for what constitutes a “significant difficulty or expense” is likely rising.
In sum, the most recent wave of accessibility suits bolsters the imperative that all retailers take a holistic approach to accessibility. Piecemeal responses to individual suits do not adequately mitigate the risk of accessibility litigation, and plaintiffs will continue to identify previously untapped opportunities to test the bounds of the ADA.