In January 2014, a blind patron sued Lucky Brand Jeans for discrimination when he was not able to use Lucky Brand’s point-of-sale (“POS”) device to independently complete a debit purchase because the visual touch screen on the POS was not discernible to blind individuals. The plaintiff filed a class action under title III of the Americans with Disabilities Act (“ADA”) in the U.S. District Court for the Southern District of Florida. Recently, the Department of Justice (“DOJ”) filed a Statement of Interest in this case in response to two arguments advanced by Lucky Brand in a motion to dismiss.

Lucky Brand argued that: (1) there is no requirement within the ADA and its regulations mandating that the POS devices have the capabilities requested by the plaintiff; and (2) since blind customers can purchase items by using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA merely because the plaintiff could not use the POS device to use his debit card as a debit card.

In its Statement of Interest, DOJ responded in no uncertain terms: “Mr. New’s complaint alleges a valid claim of discrimination under title III of the ADA – specifically, Lucky Brand discriminates on the basis of disability when it fails to afford individuals who are blind with the same ability to independently access the debit card payment option provided to others, thus failing to ensure effective communication with its blind customers during transactions for goods and services.” (Page 5.)

With respect to Lucky Brand’s first argument, DOJ asserts that the fact that POS devices are not specifically addressed in the current Title III regulation and the ADA Standards for Accessible Design does not affect Lucky Brand’s obligations under the ADA to ensure effective communication with individuals with disabilities. The ADA Standards are “only one component of title III.” (Page 6.) Per DOJ, what governs the ADA claim in this case is “title III’s general prohibition against discrimination on the basis of disability and its requirements to provide auxiliary aids and services where necessary to ensure effective communication.” (Id.)

With respect to the second argument, DOJ argues that Lucky Brand’s assertion that there was no discrimination because the plaintiff could pay by other means fails. Simply described, Lucky Brand communicates with its customers to complete purchases with a debit card via a POS device. Since the ADA prohibits outright exclusion as well as unnecessary differential treatment, it is not sufficient that customers who are blind can complete their purchase through other means. DOJ also recognizes the potential that, in order to use the debit option, individuals who are blind may seek the assistance of a third party to whom they must divulge their confidential PIN. But as DOJ notes, citing to 28 CFR § 36.303, in order for auxiliary aids and services be considered effective, they must be provided “in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” (Page 10, emphasis in the original.)

In short, this Statement of Interest indicates that DOJ’s positions include that:

  • Merely because there is an absence of specific technical standards or regulatory provisions addressing the accessibility of new technology does not mean that the technology is outside the scope of title III; and
  • Full and equal enjoyment under title III requires more than a customer being able to complete a transaction – it requires that a customer be able to securely and independently complete a transaction by any payment option that is available as a matter of course to others.