The firms that brought you website accessibility lawsuits have now moved into litigating over the lack of Braille on gift cards
Starbucks has Braille gift cards. I thought they were pretty dang cool when I saw them for the first time in 2016, and made it a point to get many, each filled with between $5 and $25 for “thank yous” and gift giving purposes. The count is probably close to 100 cards over three years. Hello, marketing opportunity anyone?
While cute and subtly making a point to sighted users that “not everyone can see”, and arguably useful to Braille users, they never caught on with other vendors. Gift cards are an enormous business, over $300 billion globally today, and estimated to reach half a trillion (with a T) in just a little over six years. Bottom line — gift cards end up in a lot of hands, and some of those hands are guaranteed to belong to people with limited or no vision.
Imagine having multiple gift cards in your wallet that you can’t tell apart?
That is the core question behind this litigation.
What is alleged in these eight cases?
The complaints each allege (in traditional cookie-cutter fashion) that the merchants’ failure to sell Braille gift cards:
- deny blind and visually-impaired persons full and equal access to the gift cards offered by the merchants, and
- therefore deny access to the products and services offered in conjunction with the merchants’ physical locations, and
- further deter plaintiffs from accessing the physical establishments themselves.
Gift card use cases
In order to analyze this you have to look at the three main gift card use cases:
- Buying a gift card for someone else
- Checking a gift card balance
- Using or gifting a gift card that you (or someone else) has bought
and of course, I will throw in my version of some legal stuff.
1. Buying a gift card for yourself or someone else
When you buy a gift card for yourself or someone else, you know how much is on the card. Why would you buy a gift card for yourself? Because LOTS of places around the holidays have bonus deals associated with gift card purchases (Buy 4 @ $20, get 1 @ 20 free, for example). Who says you have to give the free one away? Or any of them for that matter if it is a place you go to frequently?
For in-person purchase, gift cards almost always have to be bought with cash or debit cards. Businesses do not want to be in the position where you use up the gift card and then claim the purchase was fraudulent and their revenue gets clawed back.
- Cash is accessible, and sellers can’t do anything to make it more accessible
- Most in-person gift card purchases using debit cards are accessible. The only exception would be a touch-screen only system which has been out of favor for quite some time. Thank goodness.
- Online gift card purchases are accessible if the web page payment form is following WCAG 2.0 Level AA.
Conclusion: Braille really doesn’t add to the gift card purchase experience.
2. Checking a gift card balance
Gift card balances fluctuate, as purchases are subtracted to them and additional deposits may be applied. It would be therefore impossible to display the current balance in Braille on the card itself.
There are three ways that a gift card balance can be checked:
- at a kiosk
- in person
Gift card balances can be checked at kiosks. I have yet to see a gift card kiosk that is accessible. However, the kiosks are typically provided by third parties and not owned or controlled by the gift card vendors. Having Braille on the card would not improve the situation for checking a gift card balance at a kiosk. The blind customer would be able to use the Braille to identify it as a “Store X” card, but that purpose would be completely frustrated by the fact that they wouldn’t be able to use an inaccessible kiosk.
Gift card balances can be checked online. The “Starbucks” gift cards only have the word “Starbucks” on them in Braille, nothing else. Gift cards, like credit cards, have very long, unique, and complex identification numbers associated with them. Sometimes they are alpha numeric (like Amazon cards) sometimes they are just numbers. Like credit cards, to avoid duplication, it is not uncommon for them to be 16 digits. Given the need for security and the desire not to have duplicate gift card numbers, these complicated identification systems are essential. Being required to change this system could possibly be considered a fundamental alteration which is one of the exceptions under 28 C.F.R. § 36.303
Because there is a Braille character that has to appear in front of a number to identify that the subsequent Braille cell contains a number (or a letter when you are switching from numbers to letters), there may not be enough space on the card to Braille the ID. Even if there was enough space for the Braille:
- there are differences in Braille from country to country. So what would work in the US would not work in France, for example.
- I am not aware of the existence of any manufacturing equipment to synchronize what is programmed on the magnetic stripe and the corresponding Braille on the card.
Another exception provided by 28 C.F.R. § 36.303 is “undue burden”. Undue burden analysis is usually a lawyer’s last resort. Typically you have to prove that the financial burden is SO high, that it would drive the company towards instability. But if the technology does not exist to provide the solution, that might be considered an undue burden as well.
Of course, if the online form is accessible (as it should be) a blind user could ask for sighted assistance in reading the number from the back of the card. Simple solution, right? Not so fast. 1) a blind person doesn’t always have access to sighted help, and 2) people with disabilities that are forced to ask for help multiple times per day because other people can’t be bothered to make things accessible is really, really frustrating. Believe me, I speak from experience here.
Gift card balances can be checked in person. The person with vision loss could hand the card over to a person at a cash register and they could tell you what was on it. This approach requires a trip that my be difficult or expensive to arrange, and also requires trust. Gift cards are effectively cash. There is nothing stopping the cashier from pulling $20 off the card. I once won a gift card in a raffle where someone unknown had siphoned off the balance. Walmart is currently mired in a lawsuit over cashiers stealing from blind customers, so this unfortunately happens more often than someone who hasn’t experienced this situation first hand would think. Humans aren’t always honest, unfortunately.
3. Using a gift card you (or someone else) has bought
If you have a handful of gift cards and are blind, and haven’t done anything to mark them yourself or keep them separated, (like put them in different envelopes) you won’t be tell any of them apart.
- Using the card for an online purchase has the same issues as checking the balance online, identified above.
- Using the card in person has the same issues as checking the balance in person identified above
- If you are giving the gift card to someone you won’t know without involving someone sighted which card is which
The last bullet point is the best argument for where Brailled cards a) are technologically feasible, and b) add value to a person with vision loss.
More legal stuff
Does the ADA apply to gift cards?
Since Gift Cards were “gift certificates” (and paper) back in 1990 when the ADA was passed, no, the ADA does not explicitly call out gift cards. The question is whether the “full and equal enjoyment of the goods, services, facilities, privileges”that is called out in the ADA can be interpreted to include gift cards, and whether the obligation to make them accessible applies?
There is specific reference to Brailled materials as part of the definition of “auxilliary aids and services” in 28 C.F.R. § 36.303. However, it has generally been accepted that if a restaurant does not have a Braille menu, for example, a staff member reading the menu to the blind customer is a legal substitute. But with gift cards, there is both a privacy issue and a security issue that does not apply to reading a menu that anyone can see.
Is the Domino’s case instructive here?
The short answer is no. The recent Domino’s case that has been litigated all the way to the US Supreme Court (who turned it down in a surprise to no one with the possible exception of Domino’s employees) was specifically about website accessibility. Though Domino’s is named as one of the defendants in the class actions filed regarding Braille gift cards. Given how much Domino’s spent fruitlessly on the website accessibility case, one would hope they would be a little less aggressive in their defense this time.
This new accessibility litigation them is one will be an interesting one to follow, as will the drive-thru discrimination suits where plaintiffs are suing because only the drive thru is open and pedestrians are barred from drive thrus so people with disabilities that prevent them from being able to drive can’t order when people without disabilities can.
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