Those of us in the financial services industry often have a unique perspective on the holiday season. Several years ago, I was in the checkout line at a local retailer when I overheard the cashier and another holiday shopper complaining about “chip” technology and the burden it imposed on both retailers and consumers. Of course, I couldn’t resist the opportunity to explain the data security benefits of EMV (chip) technology to everyone in the checkout line. More recently, I found myself holiday shopping online wondering whether the retailers’ websites were compliant with the Americans with Disabilities Act (ADA). This year, whenever I see a gift card, I’m probably going to wonder whether that gift card is also available in braille.

Over the past several months, courts in New York, and more recently California, have seen an influx of lawsuits against retailers, restaurants, pharmacies and other merchants alleging violations of the ADA for failing to make braille-embossed gift cards available to vision-impaired customers. Essentially, the plaintiffs in these lawsuits requested that the retailer provide its gift card in braille. If the retailer responded that a braille-embossed gift card was not available, the plaintiff, who was vision-impaired, would file suit under the theory that a retailer that provides a gift card, but does not offer the gift card in braille, is discriminating against individuals who are vision-impaired in violation of the ADA.

This new wave of ADA gift card litigation closely mirrors the previous wave of ADA litigation alleging that the websites of various places of public accommodation were not accessible to individuals with disabilities and were therefore in violation of the ADA. If this new wave of ADA gift card litigation follows the same pattern as the ADA website litigation, banks could be the next target for claims of ADA violations related to the accessibility of card products such as debit cards, prepaid cards, and credit cards.

Fortunately, financial institutions can ensure their card products are accessible, and mitigate the risk of ADA gift card litigation, by appropriately responding to consumers’ reasonable requests for accommodation, including requests for braille products and communications. Moreover, since the courts have not yet ruled on the viability of this new wave of ADA gift card litigation, it is uncertain whether a court would agree that the lack of a braille-embossed gift card equates to an ADA violation.

Nonetheless, while you enjoy the holiday season and watch with excitement as your loved ones enjoy the gift cards they receive this year, it might also be a good time to reflect on your institution’s internal policies and procedures regarding responding to requests for reasonable accommodations, including requests for braille card products and communications. And if you have questions, please feel free to give us a call.

 

Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the state’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.