January 03, 2020 | Legal News

New Lawsuits Demand Braille on Gift Cards

A new wave of lawsuits under the American with Disabilities Act (“ADA”) is now trending – several brands are now facing class action lawsuits for failing to make gift cards available in Braille.

Visually-impaired plaintiffs argue that gift cards without Braille are indistinguishable from credit cards or gift cards from other stores. The plaintiffs therefore contend that they are being denied equal access to these stores, and the goods, services, and benefits they offer.  The plaintiffs have requested a number of reforms, such as: (i) printing the name of the store and the denomination in Braille, and (ii) inserting certain key information printed in Braille in the packaging of the gift card, such as the terms of use, privacy policy, and how to check available balances.  Of course, for retailers, there would be no shortage of practical issues associated with implementing these changes.

Similar to the previous wave of website accessibility ADA claims, we recommend that franchisors stay vigilant.  While these lawsuits raise some interesting questions, it remains unclear how courts will interpret the ADA in this context.   We also note that the US Department of Justice has not weighed in on this issue (as it had previously done in the context of website accessibility).  In fact, the regulations published under the ADA specifically state that stores are not required to alter their inventory to include goods designed for individuals with disabilities.  Are gift cards part of a store’s inventory?  Or more similar to a website, are they a method of public accommodation?  Additionally, could a retailer provide other methods for visually-impaired persons to obtain the same benefits (gift cards sold online for example)?

As this issue unfolds,  franchisors may wish to take a few precautionary steps.  For example, it would likely be worth reviewing your contract with any gift card service provider to determine  who is responsible  (you or the service provider) for ensuring the gift cards comply with applicable laws – in other words, who would bear the liability for any successful claim that the gift cards violated the ADA.  Further, you may want to ask your insurance carrier whether you would be covered under your existing insurance policies if you were to become the target of one of these lawsuits.  Last but not least, if may be worth considering whether you wish to add Braille to your gift cards to mitigate potential future exposure

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