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Gift cards are now under scrutiny with respect to whether they must be compliant with the Americans With Disabilities Act (“ADA”). Among other things, the ADA bans discrimination against the disabled in “places of public accommodation.” In this way, the statute entitles everyone to the “full and equal enjoyment” of services or facilities that are provided generally to the public.
As we here at Revision Legal have discussed previously, over the last few years, courts have been struggling with the question of whether websites and other online platforms must be accessible to the blind and other impaired individuals. The legal quandary results from the fact that websites are not “physical” locations. In a slow, case by case build-up of legal precedent, the courts have taken a somewhat middle position on this question. For now, a website — with nothing more — does not have to be ADA-compliant. However, if a website is integral to one or more physical locations and “drives” consumer traffic to those locations, then the website must be ADA-compliant. The courts have reasoned that, under those circumstances, a website is one of the features that allows consumers to have “full and equal enjoyment.” To make a website ADA-compliant, the site must be constructed with certain underlying software and coding that allows a disabled consumer to use reading software that converts visual elements into audio.
Recently, a spate of lawsuits have been filed attempting to extend this legal argument to gift cards. For example, over a hundred cases have recently been filed in the Southern and Eastern Districts of New York against retailers. Among the targets are businesses like Krispy Kreme Doughnuts and Hooters.
The main allegation of the lawsuits concerns the physical cards themselves. In general, the plaintiffs are alleging that the cards should contain Braille in order to be compliant with the ADA. Other claims being alleged include legal theories with respect to the ability to check balances on the cards via the internet. These theories link up with the recent decisions about retail websites being ADA-compliant.
As of now, these legal issues are unresolved. There is some previous case law concerning bookstores and booksellers and whether they must sell books in Braille if they offer books for sale. Those decisions denied relief to the plaintiffs holding that bookstores do NOT need to provide books in Braille to be compliant with the ADA. See, for example, Ariz. ex rel. Goddard v. Harkins Amusement Enterprises, Inc., 603 F.3d 666 (9th Cir. 2010).
Gift cards are, of course, different than books and judges may or may not accept that the analogy between gift cards and books is the salient one. The recent focus of web-accessibility cases on whether a mechanism — such as the website — “drives” sales and traffic to brick and mortar locations might be a more apt analogy. Arguably, gift cards serve the same purpose — driving consumer sales. Thus, one might predict that courts will hold that gift cards should contain Braille on their face and on their packaging in order to comply with the ADA. The issue of being able to access the card’s available balance might be a more complex legal analysis. If the card is issued, supported and administered by the retailer, then — most likely — ADA-compliance would be needed since the websites themselves must be ADA-compliant. If the gift cards are administered by a third party, the analysis is a bit more nuanced since that website is not, in theory, “driving” sales and customer traffic to a physical location.
Title III of the ADA, 42 U.S.C. § 12181 et seq., prohibits discrimination on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations of any place of public accommodation operated by a private entity. The statute lists 12 categories of public accommodations, including retail establishments, restaurants, and places of entertainment — most businesses open to the public.
The ADA does not merely require that disabled individuals be allowed to enter a business. It requires that they receive the full and equal enjoyment of what the business offers. A blind customer who cannot independently check the balance on a gift card, cannot read the card’s terms and conditions, or cannot use a gift card website that is not screen-reader-accessible may have a colorable claim that the business has denied them full and equal enjoyment of a service offered to the general public.
The Department of Justice (DOJ) enforces Title III and has authority to investigate complaints, sue violators, and impose civil penalties. Private plaintiffs may also sue under Title III and seek injunctive relief (changes to the business’s practices or facilities) and attorneys’ fees. Title III does not provide for compensatory damages in private suits, but the cost of attorneys’ fees and the burden of injunctive relief make ADA compliance a practical business priority.
Web accessibility litigation has exploded in recent years. Thousands of lawsuits are filed annually under Title III alleging that websites are inaccessible to blind users because they lack proper alt-text for images, are not navigable by keyboard alone, use color contrast that is insufficient for visually impaired users, or lack proper form labels. The most widely referenced accessibility standard is the Web Content Accessibility Guidelines (WCAG), published by the World Wide Web Consortium (W3C). While WCAG is not formally incorporated into the ADA, courts and the DOJ increasingly treat it as the relevant benchmark.
The Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1307 (11th Cir. 2021), clarified that a website is not itself a place of public accommodation under Title III. However, a website that serves as the gateway to a physical place of public accommodation — enabling customers to find store locations, make purchases, check balances, and access services offered in person — must be accessible. This is the “nexus” test that courts in many circuits apply.
For gift cards specifically, the nexus test cuts in favor of ADA compliance. If a gift card can be activated, checked, or reloaded through a retailer’s website, and the retailer has physical stores, that website has a sufficient nexus to the place of public accommodation. A blind customer who cannot use the website to check the balance on their gift card is arguably being denied the full and equal enjoyment of a service offered to sighted customers.
Businesses that issue or accept gift cards should take the following steps to assess and mitigate ADA risk:
The cost of proactive ADA compliance is almost always less than the cost of defending serial ADA litigation, which frequently targets businesses with multiple locations and predictable high-volume foot traffic.
If you have questions about ADA-compliance and your company’s website, gift cards and/or mobile apps, contact the internet lawyers at Revision Legal at 231-714-0100.
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