Editor's Note: The following is a guest post from Sue J. Stott (partner), Amanda J. Beane (partner) and Jill L. Ripke (counsel) of international law firm Perkins Coie LLP.
The Americans with Disabilities Act (ADA), first enacted in 1990, generally requires that retailers — as “places of public accommodation” — provide access for those with disabilities to the goods and services offered. In recent years, retailers have been hit with multiple lawsuits, most on behalf of customers who are blind or visually impaired, seeking to apply the ADA to their use of a range of core technologies including:
There have been a number of lawsuits filed against retailers alleging that a blind or visually impaired customer allegedly could not independently use a keypad on a POS device to enter a personal identification number (PIN) to complete a debit transaction; that is, they needed the support of another individual to complete their transaction. This situation can arise when a POS contains a non-tactile keypad. These lawsuits asserted that alternatives such as having the sales clerk enter the PIN on behalf of the customer or asking the customer to complete a credit transaction instead of debit do not absolve the retailer of liability under the ADA, arguing that blind and visually impaired customers should be afforded the same opportunity as sighted customers to complete a debit transaction with the same degree of privacy. The U.S. Department of Justice (DOJ) has agreed.
2016 brought an onslaught of claims and lawsuits against retailers regarding the accessibility of their consumer-facing websites. As with POS devices, these lawsuits claimed that blind and visually impaired customers are entitled to independent access to websites — that is, the ability to use the website without the support of others. Common allegations of deficiencies include: Website images that are not text-labeled; pages that are not readable or functional when text size is increased; forms that are not accessible; and labels or instructions that are not provided when the website’s content requires user input.
The DOJ has taken the position that websites offering goods or services to consumers are places of public accommodation and must be accessible to disabled customers. The DOJ has been working to develop regulations for websites, looking to the Web Content Accessibility Guidelines (WCAG) 2.0, developed by the World Wide Web Consortium (W3C). While the fate of those proposed regulations is now uncertain in light of the change of administration, court decisions in some jurisdictions have already made reasonably clear that consumer-facing websites must be accessible to the blind or visually impaired. That’s not likely to change.
Kiosks have also been the target of ADA lawsuits aimed at retailers. Again, the issue is whether a kiosk can be used by a blind or visually impaired customer without third-party support. While regulations require automatic teller machines (ATMs) to feature tactile keypads, headphone jacks and text-to-speech software so that they can be used independently by blind or visually impaired customers, specific regulations have not been developed for other types of kiosks. Lawsuits in this arena, however, typically allege that under the ADA, blind or visually impaired customers must be able to independently use a kiosk, and not have to rely on customer service or other third-parties for help. The nature of the kiosk and the setting will impact whether the ADA requires independent use for the kiosk.
The same threat of litigation looms for retailers using mobile applications to offer goods or services to consumers. Private litigants have argued that mobile applications, like websites, should be independently accessible to blind and visually impaired users and must comply with WCAG 2.0 guidelines.
This is a brave new world, with new technologies emerging faster than many can recognize the related legal risk. But savvy retailers can take steps to reduce the risk of lawsuits, including familiarizing themselves with how the ADA applies to all of the ways in which goods and services are offered — not just storefronts and physical access to bricks and mortar — and recognizing that some states have disability access and discrimination laws that heighten access requirements.
One of the best defenses against any claim is well-trained customer service personnel available to assist customers with disabilities. As always in a retail setting, trained and courteous customer support will help ensure that issues are addressed as they arise and that customers are satisfied.
But customer satisfaction will not necessarily go far enough to secure maximum protection from technology-based disability access litigation. Retailers also should have a process in place for review of their POS, websites, interactive kiosks and mobile applications, beginning at the research and development stage. Ideally, such assessment involves experienced IT access specialists (working with in-house counsel, company IT and security technicians) in a setting that can be guided by experienced outside legal counsel who can help navigate risk and ensure that the details of any remediation of identified concerns is subject to attorney client privilege and/or work product protection.
The pace of technological innovation isn't going to slow down. But these checks and balances can help retailers remain ahead of the curve.