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Websites, Mobile Apps and now . . . Gift Cards – No Slowdown in the Filing of ADA Accessibility Lawsuits

The latest wave of litigation brought under Title III of the Americans With Disabilities Act (ADA) raises the novel question of whether the ADA requires that physical gift cards be Braille-embossed. The same law firms that spearheaded the website and mobile application accessibility litigation are testing this new legal theory by filing hundreds of identical lawsuits in New York City and across the nation.

The ADA generally provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). However, the ADA also contains an exemption “where compliance would ‘fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.’” 42 U.S.C. § 12182(b)(2)(A)(iii).

The gift card lawsuits contend that the defendants are “places of public accommodation” under the ADA and are denying blind and sight-impaired customers the opportunity to equally participate in, or benefit from, the defendants’ goods and services. The plaintiffs claim that they are deterred from visiting the stores and restaurants at issue and denied the equal enjoyment of those locations because they are unable to purchase a braille gift card for use at the stores and restaurants. The legal theories being advanced in these gift card lawsuits are novel. To date no case law exists specifically analyzing the application of Article III of the ADA (or the NYSHRL or the NYCHRL) to the issuance and availability of gift cards.

Businesses faced with a gift card lawsuit may be able to obtain dismissal by taking prompt remedial action that moots the plaintiff’s claims. Although still untested in the gift card context, this strategy was successfully employed in a recent decision in the Southern District of New York involving website accessibility. See Diaz v. Kroger Co., 2019 U.S. Dist. LEXIS 93177 (S.D.N.Y. June 4, 2019).

One option to avoid being a target in this new wave of ADA litigation includes offering electronic gift cards in an accessible format that can be read with a screen reader in lieu of physical (plastic) gift cards. Any business engaged in the sale or issuance of gift cards should promptly consult with legal counsel and take steps now to reduce their risk of litigation.

To discuss with counsel at Kane Kessler with expertise in ADA Title III accessibility litigation, please contact Jennifer Schmalz or Lois Traub in the firm’s Labor and Employment Department.