Reed Smith Client Alerts

Are your retail gift cards in Braille? Plaintiffs in the newest wave of Americans with Disabilities Act (“ADA”) public accessibility cases believe they should be.

In the last few weeks, a barrage of lawsuits hit New York federal courts alleging that retail defendants violate the ADA because they fail to offer Braille gift cards for purchase to consumers. The cases are brought as putative class actions on behalf of individuals who are blind or visually-impaired. Many of the plaintiffs are the same ones who flooded the courts with website accessibility lawsuits in the last several years.

Specifically, plaintiffs allege that they contacted the defendant store and asked if the defendant sold gift cards containing Braille. According to plaintiffs, they were informed by the defendant’s employees that the defendant does not sell store gift cards in Braille. Plaintiffs’ contend that the defendant store’s failure to offer Braille gift cards discriminates against individuals with vision impairment by preventing equal access to the defendant’s retail store and the goods and services offered to the public. The complaints cite to the market for gift card purchases and name other large retailers who do and do not offer Braille gift cards.

While this initial wave of litigation is focused on the purchase of gift cards at physical locations, it is likely that the plaintiffs’ bar will take this theory of ADA liability into the online sphere. For example, the next wave of litigation may assert that gift cards without Braille prevent individuals with vision impairment from using gift cards to make a purchase through a retailer’s website, or that the website does not provide an accessible user experience for a vision-impaired customer who is attempting to redeem a gift card. In any event, as currently pled, the gift card lawsuits should be subject to various defenses, including that gift cards, as goods, are not places of public accommodation and that the ADA generally does not require goods to be specially manufactured with Braille.

Client Alert 2019-263