By Minh N. Vu and Lotus Cannon

Seyfarth Synopsis:  Federal court in New York reaffirms that reading information aloud to customers who are blind or low vision is still an acceptable auxiliary aid or service and retailers do not have to offer accessible goods.

On January 30, 2024, U.S. District Judge Rachel Kovner of the Eastern District of New York ruled that a clothing retailer does not have to provide digital labels for their products (some offer digital labels on product tags, such as QR codes, which can be scanned and read aloud by screen readers on mobile phones).  The decision is a nice win for retailers, particularly since the plaintiff never asked for assistance while in the store, but instead filed a claim based on the theory that retailers that do not provide digital labels on their products, irrespective of whether they were willing and able to provide one-on-one assistance to blind or low vision customers, violate Title III of the ADA.  This theory is reminiscent of the barrage of Title III claims filed several years ago in New York and California over whether public accommodations are required to provide gift cards with Braille, which courts (including the Second Circuit) roundly rejected

The plaintiff, who is blind, sued Gap claiming that the lack of digital labels on products sold at its stores violates Title III of the ADA as well as New York State and New York City disability access laws by: 1) denying customers with disabilities full enjoyment of its goods and services; and 2) failing to provide “auxiliary aids and services” to ensure effective communication. 

The Court held that Gap does not have to provide digital labels because a place of public accommodation does not have to offer accessible versions of its goods or products, or alter its goods or services to make them accessible, so long as it provides access to its existing goods and services.  Since product labels are part of, and intertwined with, the products sold, they are not required to be accessible.  The Court also cited to 36 C.F.R. § 36.307(a) which provides unequivocally that a public accommodation is not required under Title III “to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities.”  Additionally, the Court relied on the Second Circuit’s decision addressing the Braille gift cards in Calcano v. Swarovski N. Am. Ltd. 

The Court also found that the complaint had not plausibly alleged that Gap stores failed to provide the plaintiff with auxiliary aids or services to ensure effective communication because there was no allegation that the plaintiff asked for assistance from in-store employees to read the product labels aloud or other auxiliary aids.  And in response to the plaintiff’s argument that she would not be able to access the label information at home, Judge Kovner held that the ADA’s mandate to provide auxiliary aids and services “is not, by its terms, concerned with regulating the performance of products in consumers’ homes.” 

Interestingly, the Court dismissed the Complaint without prejudice, and gave the plaintiff thirty days to file an amended complaint.

A victory for public accommodations, this decision reinforces the following legal principles:  (1) businesses do not have to provide accessible goods or services, such as digital labels; (2) reading product and other information to customers who are blind or low vision is an acceptable auxiliary aid in the retail context; and (3) individuals with disabilities cannot assert a claim that they were denied auxiliary aids or services unless they actually asked for them.  To benefit from this legal framework, businesses must ensure that employees are properly trained to promptly provide assistance to customers with disabilities upon request. Edited by John Egan