The Department of Justice Files a Statement of Interest in Support of ADA Title III Point-of-Sale Litigation

By: Alisa N. Carr, Esq.

On April 10, 2014, the United States Department of Justice (“DOJ”) filed a Statement of Interest in the matter of New v. Lucky Brand Dungaree Stores, Inc., 14-CV-20574 (S.D. Fla.) asking the District Court to find a valid claim of discrimination under Title III of the Americans with Disabilities Act (“ADA”) when a public accommodation utilizes a point-of-sale (“POS”) device that is not independently usable by customers who are blind or have low vision.

Opposing the defendant’s motion to dismiss the class action complaint, the DOJ stated that the absence of specific technical standards or regulatory provisions regarding POS devices “in no way” establishes that the accessibility of POS devices is outside the scope of Title III. Until the process of establishing specific technical requirements for POS devices is complete, public accommodations have a degree of flexibility in complying with Title III’s more general requirements of nondiscrimination and effective communication—but they must still comply.   The ADA prohibits not only outright exclusion but also unnecessary differential treatment. Accordingly, a defendant may not successfully assert that customers who are blind can complete their purchases through means other than a debit card.

While the DOJ did not assert that a tactical keypad is the only auxiliary aid or service that could be used to ensure effective communication with individuals who are blind or have low vision, it emphasized that blind customers must be able to independently access the debit payment option without having to divulge their PIN to a third party in order to meet the ADA obligations for effective communication.

With dozens of similar ADA lawsuits filed in the Western District of Pennsylvania, public accommodations need to be aware of the applicable ADA standards for POS devices and the DOJ’s position regarding effective auxiliary aids. (A copy of the Statement of Interest is available here.)

Alisa N. Carr is a partner in the Litigation Practice Group. She can be reached at 412.261.1600 or acarr@leechtishman.com. Please feel free to contact Alisa with any questions regarding adaptations public accommodations may need to make to their point-of-sale devices.

Leech Tishman is a firm dedicated to providing full-service commercial legal services to individuals, businesses, and institutions. We combine a deep understanding of our clients and their businesses with skilled legal counsel to find solutions. We offer legal services in alternative dispute resolution, bankruptcy & creditors’ rights, construction, corporate, employment, energy, environmental, safety & toxic torts, estates & trusts, government relations, insurance coverage & corporate risk mitigation, intellectual property, international legal issues, litigation, real estate, and taxation. Leech Tishman has offices in Pittsburgh, PA, Chicago, IL, New York, NY, Los Angeles, CA and Wilmington, DE. For more information call 412.261.1600 or visit www.leechtishman.com.