Hooter’s and Domino’s pizza restaurants are being sued for allegedly violating the Americans With Disabilities Act (“ADA”) for not having Braille on their gift cards. See news report here.

The plaintiff, Marcos Calcano, is legally blind. He is suing Hooters and Domino’s on behalf of himself and others who are visually impaired. According to his lawsuits, Calcano would have bought gift cards had they contained Braille and plans to buy gift cards containing Braille when such are available. According to news reports, Calcano believes that gift cards would be easier to use for the blind if they contained braille and adding braille would “would restore the dignity to blind persons.” At this point, it is an open question whether braille-less gift cards violate the ADA. There have been many lawsuits recently filed wherein courts have required that businesses make their respective websites accessible to the blind and visually impaired. The ADA prohibits discrimination against those with disabilities with respect to “public accommodations.” See 42 U.S.C. § 12181. The courts have struggled with the issue of website accessibility because websites are not physical locations. However, the courts have generally come to hold that, if the non-physical website is connected in a meaningful way to a physical store or location and aids customers in the use of the physical location, then the website must be accessible to the visually impaired. The courts are increasingly focusing on this “nexus” between the website and the physical location.

This is the same legal theory being put forth by plaintiffs like Calcano. However, it might be difficult for plaintiffs to win this legal argument with gift cards. At its most basic level, gift cards are not physical locations and do not have the same level of nexus as a website has with a physical location. Unlike a website, gift cards do not provide information that a customer can use to find stores, search for products, evaluate prices, and learn about sales and promotions. There is already some case law about whether the ADA requires businesses to provide goods and products in braille. For example, it was held in one case that the ADA prohibits a bookstore from discriminating against disabled people in granting access to the store, but does not require that the books be available in Braille as well as print. See Ariz. ex rel. Goddard v. Harkins Amusement Enters., 603 F.3d 666 (US 9th Cir. 2010). If a bookstore does not have to provide books in Braille, logically, stores do not have to provide gift cards in Braille.

That being said, fighting class action lawsuits is expensive — very expensive. Depending on the cost, providing gift cards with Braille might be less expensive than litigating. We will watch the legal developments with interest.

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For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard can be reached at (858) 483-9200 or via email. Mr. Leonard has been named “Best of the Bar” for four years running by the San Diego Business Journal. Mr. Leonard provides a full panoply of legal services for businesses including formation of corporate entities of all types. Like us on Facebook.

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