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Businesses Offering Gift or Other Pre-Paid Cards May Be Violating the ADA

Businesses that offer gift cards or other pre-paid electronic funds need to be aware of a new potential exposure relating to offering such products.   

The Americans with Disabilities Act (“ADA”) 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).  Over the past few years, numerous businesses have been sued in federal courts for alleged violations of the ADA based on the companies’ failures to make their websites accessible to the visually impaired.  Indeed, some law firms have developed volume business based on these type of claims, churning out cases in federal courts throughout the country using the same visually impaired plaintiff who tried to access the defendants’ websites.  Our firm has defended clients in a number of these litigations.

Now, a new species of related cases has sprung up, involving claims that businesses are violating the ADA by providing gift cards that do not contain braille.  Some law firms are already picking up on this new ADA target – according to one count, in late October two attorneys filed approximately 50 nearly identical complaints in federal courts. In those actions, the plaintiffs allege that they are blind, that they cannot distinguish between gift cards and other types of similarly-sized cards (such as credit cards), and that by failing to provide braille on the cards the defendants are preventing the plaintiffs from equally enjoying the businesses’ offerings. For example, the Walt Disney Company was recently sued in the U.S. District Court for the Eastern District of New York based on these allegations.  (Kathy Wu v. The Walt Disney Company (No. 1:19-cv-06175)).  Hooters and Krispy Kreme have also been sued.  These lawsuits also contain claims under the New York State and New York City Human Rights Laws.  Time will tell how these actions play out, but likely most will settle given the costs of litigation. Based on our experience defending ADA cases involving websites, we anticipate that other plaintiff firms will pick up on this new type of case.   

TAKEAWAY: Companies that offer gift cards as well as other types of payment vehicles should explore including braille or other types of sight-impaired accommodation given the recent litigation.

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