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Banana Republic, Kohl’s to Argue Braille Gift Cards Not Required

Jan. 12, 2021, 11:30 AM

Banana Republic, Kohl’s Department Stores Inc., and other retailers are slated to tell the Second Circuit Wednesday that the Americans with Disabilities Act covers access, not goods, and doesn’t require them to issue Braille gift cards to visually impaired customers.

Banana Republic LLC, Swarovski North America Ltd., Jersey Mike’s Franchise Systems Inc., The Art of Shaving, and Kohl’s face a combined appeal set for argument in the U.S. Court of Appeals for the Second Circuit.

Title III of the ADA prohibits places of public accommodation from discriminating on the basis of disability when providing access to goods and services.

Marcos Calcano and other patrons are expected to tell the court that the provision applies to gift cards—an industry expected to grow from $318 billion in 2017 to $506 billion by 2025—and that requiring Braille is especially important during the Covid-19 pandemic, when many in-store services are curtailed.

Numerous federal trial courts in New York, however, have ruled the visually impaired individuals who have tried to sue over the issue have lacked standing because they failed to allege an intent to return to the stores, a necessary requirement under the law to show a future injury. The courts also have said the law simply doesn’t cover gift cards.

Though the ADA requires non-discriminatory access to the goods being sold, the federal statute doesn’t require businesses to sell accessible goods such as Braille gift cards, or for that matter, Braille books, the courts said.

But the plaintiffs will argue to the Second Circuit panel that they have standing: They live near and have been to the stores, and would go again if Braille gift cards were available, their filings say.

Store gift cards, which have no intrinsic value, also aren’t goods, the plaintiffs will argue. Rather, they are a covered “service” because they provide a means to purchase a seller’s goods.

And, under the federal law, the merchants must provide auxiliary aids so visually impaired customers can use the gift card services, and Braille is the only feasible aid, they say.

Unless the gift cards contain some identifying information, visually impaired customers can’t tell one card from another.

Further, without significant information in Braille, such as the name of the store or a phone number for further information, blind recipients don’t know how to obtain auxiliary help, such as getting someone not visually impaired to look up a balance or help with redemption, plaintiffs say.

This problem has become particularly evident as the Covid-19 pandemic has forced closures or other restrictions at many retail establishments, preventing or making it harder to get help from in-store employees, they say.

Alternatively, store gift cards must be considered places of public accommodation under the ADA, which was intended to be flexible and to account for new developments in technology, plaintiffs say in their brief.

Courts have recognized that public accommodations need not be physical places, but encompass any form of a space an individual can access that facilitates the obtaining of goods or services, they argue.

Companies Call Cards ‘Goods’

Banana Republic, Swarovski, and the other retailers are expected to tell the appeals court the claims were properly dismissed for lack of standing and on the merits.

Injunctive relief is the only remedy available to private litigants under Title III of the ADA, and the plaintiffs haven’t sufficiently alleged they’ve been injured by the lack of Braille gift cards, the companies say in filings.

Gift cards don’t fit any of the law’s 12 listed categories of “places of public accommodation,” all of which are physical spaces, the companies say.

And a gift card is a “good” that a “place of public accommodation” may offer, not a “place of public accommodation” itself, Banana Republic says.

Gift cards are purchased with money and may be given as gifts or resold for money, just like every item in defendants’ inventories, the merchants say.

Even assuming a gift card were a service requiring the provision of auxiliary aids, the law’s regulations wouldn’t require Braille cards, Jersey Mike’s and Art of Shaving say.

Businesses have broad discretion to choose which auxiliary aid to offer, as long as the aid provides effective communication for individuals with disabilities, the companies say, and fewer than 10% of the 1.3 million legally blind individuals in the U.S. use Braille to communicate.

The plaintiffs—who allege they called the stores to inquire about Braille gift cards—also have effectively communicated with the merchants, Banana Republic says.

The Retail Litigation Center Inc., Restaurant Law Center, National Retail Federation, Retail Gift Card Association, and National Association of Theater Owners submitted a friend-of-the-court brief supporting the merchants.

The Law Offices of G. Oliver Koppell & Associates, Marks Law Firm PC, and Gottlieb & Associates represent the plaintiffs.

Morgan Lewis & Bockius LLP represents Swarovski and Banana Republic. Jackson Lewis PC represents Jersey Mike’s and the Art of Shaving. Steptoe & Johnson LLP represents Kohl’s.

The case is Calcano v. Swarovski N. Am. Ltd., 2d Cir., No. 20-01552, oral argument 1/13/21.

To contact the reporter on this story: Julie Steinberg in Washington at jsteinberg@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Steven Patrick at spatrick@bloomberglaw.com

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