Gift cards are now under scrutiny with respect to whether they must be compliant with the Americans With Disabilities Act (“ADA”). See Bloomberg opinion piece here. 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-complaint. 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. See report here. For example, over a hundreds cases have recently been filed in the Southern and Eastern Districts of New York against retailers. See report here. 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.
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.