Remember all those gift cards you sold for the holidays? Little did you know that gift cards – what was once thought of as the gift that keeps on giving, could soon be the gift that bites back.
Recently, a wave of lawsuits were filed against restaurants and retailers located in New York for their failure to sell gift cards that contain braille. These lawsuits allege violations of the Americans with Disabilities Act (“ADA”), the New York State Human Rights Law and the New York City Human Rights Law. New York hospitality employers who sell gift cards should be aware of this new and novel concept, and consider preparing proactively to avoid being faced with similar lawsuits.
Compliance with the ADA has long been the source of concern for many hospitality employers. As most know, the ADA prohibits disability discrimination in the employment context, and also prohibits discrimination against disabled members of the public in the full and equal enjoyment of the goods and services of any place of “public accommodation.” Places of “public accommodation” include restaurants, hotels, bars, retail stores and spas. While in the employment context, employers are only required to provide accommodations when an employee or applicant for employment is disabled, places of public accommodations are required to affirmatively take steps to ensure individuals with disabilities are afforded equal access to their goods and services.
In the past, lawsuits focused on the accessibility of a public accommodation’s physical premises. For example, litigation was brought where a wheel chair bound individual could not enter a restaurant or where a touchscreen point-of-sale system did not include a speaking function so visually impaired individuals could order food. Over the past few years, there was an uptick in lawsuits in ADA website compliance. Generally, in those types of cases, visually-impaired plaintiffs argue that a company’s website is not accessible to them because the website lacks proper software, such as screen readers, to allow them to have equal access to the goods and services being offered. Courts across the country have struggled to agree on whether a “website” is considered a “public accommodation” just like the physical location of the business. However, the same district courts in New York that will rule on this gift card issue have ruled that a website is a place of public accommodation.
The new wave of litigation focusing on the accessibility of gift cards for the visually impaired address the following issues:
- Whether store gift cards are a “public accommodation” under federal, state and local disability law; and,
- Whether gift cards that are not embossed with braille deny visually impaired individuals the full and equal enjoyment of its goods and services under federal, state and local disability law.
Generally, these legally blind plaintiffs allege they were prevented from enjoying the full and equal access of a restaurant or retailer’s services because the company’s gift cards, which are generally the same size and texture as other cards, do not contain braille. Consequently, to a visually impaired person, these gift cards are indistinguishable from other cards, and in order to use them, they are required to rely on the help of a sighted individual which affects their dignity and makes them vulnerable to fraud and errors.
According to these complaints, sales of gift cards amounted to about $400 billion in 2019 and grows annually by 10%. Despite these statistics, plaintiffs were only able to locate one retailer who currently offers braille-embossed gift cards – Starbucks. While this shows that it may not be the norm for gift cards to be available in braille, it does show the provision of such is feasible and complicates a defense that offering braille embossed gift cards is too expensive or difficult.
Title III of the ADA generally requires public accommodations, like restaurants, provide appropriate auxiliary aids and services, such as braille material, where necessary to ensure effective communication with individuals with disabilities. However, the businesses are not required to do so if they can demonstrate that taking such steps would result in an undue burden, such as significant difficulty or expense, or would fundamentally alter the nature of the goods and services being offered. It should be noted that what is considered an “undue burden” for a Fortune 500 company like Starbucks, is a much higher threshold than for a local restaurant with significantly lower revenues and resources.
Additionally, under the ADA, restaurants have the right to choose which auxiliary aid they offer as long as the result is effective communication. For example, there is an argument to be made that a restaurant need not offer menus in braille for blind patrons if the waiters in the restaurant are available to read the menu. Therefore, restaurants could reasonably make similar arguments in the gift card context.
While hospitality employers may have affirmative defenses under disability laws, these types of lawsuits are so new that it is unclear how those defenses will fare, and how these lawsuits will play out. Just like the website accessibility cases, these gift card cases can be brought by serial plaintiffs against any business which offers gift cards. The question a restaurateur should ask is whether they want to be the next test case? Even a winning case can cause significant fees and bad publicity. Businesses should be mindful of this new liability risk, and consider the feasibility of proactively offering some sort of auxiliary aid to make their gift cards accessible for the visually impaired.
Amanda M. Fugazy is a partner at Ellenoff, Grossman & Schole in New York City. Amanda is the head of the firm’s Labor and Employment group, and has a focus on the restaurant and hospitality industry. Amanda offers a variety of services to the industry, including working with her clients to ensure that they are in compliance with state and federal laws and regulations.
Nicole M. Vescova is an Associate in the Labor and Employment Practice Group. Ms. Vescova represents and advises clients in a variety of labor and employment matters, including workplace issues such as proper pay practice, employee classification, discipline, termination, and leave. Ms. Vescova drafts various employment policies and agreements such as company handbooks, commission agreements, and non-competition and non-disclosure agreements. She also defends employers against wage & hour claims, and discrimination & harassment claims.
Amanda M. Fugazy (firstname.lastname@example.org) and Nicole Vescova (email@example.com) can be reached via phone at 212-370-1300.