(Bloomberg Opinion) -- In this season of giving, nothing says I-waited-until-the-last-minute-and-didn’t-have-time-to-think-seriously-about-what-to-get like a gift card. In both their solid and virtual forms, the cards have become a ubiquitous sign of the holiday season. But does the law require that they be available in braille?
That’s the theory of a recent flurry of lawsuits arguing that the popular stocking stuffers are not compliant with the Americans with Disabilities Act. Although the legal and practical issues are complex, and merchants warn of the expense, the lawsuits carry a certain egalitarian appeal. They also raise important questions about Christmas itself — and the evolution in how we give gifts.
First, a bit of legal context. Title III of the ADA prohibits any “public accommodation” from denying “full and equal enjoyment” of its services or facilities on the basis of disability. Although it’s hornbook civil rights law that stores are public accommodations, courts have puzzled for decades over how to apply the statute to everyday retail.
But we’re in the process of learning the answer. Earlier this year, the U.S. Court of Appeals for the 9th Circuit reinstated a lawsuit against Domino’s Pizza, in which the plaintiffs claims that the restaurant, in both its website and its mobile application, violated the ADA by failing to offer sufficient accommodations for the visually impaired. The case was part of a wave of recent lawsuits — numbering by some counts in the thousands — claiming that websites are inconsistent with Title III.(1) In October, the Supreme Court refused to hear the pizza chain’s appeal.
Although one can certainly view the gift card litigation as the next level along the slippery slope that critics keep warning about, it’s worth noting that the cases aren’t all going the same way. In a much-discussed 2015 decision, for instance, a federal judge in New York held that a restaurant could be fully compliant with the ADA by providing assistance when a blind customer sought to use a touchscreen device to order drinks.
Moreover, there’s reason to think courts may be tiring of the wave upon wave of Title III cases. Earlier this year, in a case called Price v. Escalante-Black Diamond Golf Club, an exasperated federal judge wrote that “the idea of universally or fully accessible websites is essentially a myth given today’s technological constraints.”(2)
Small surprise, then, that a number of observers think the gift card suits are likely to wind up being rejected. Regardless, the litigation should focus our attention on the evolution of the way we give gifts — for Christmas is as much activity as observance.
Among Christians, the religious version of the holiday celebrates the birth of Jesus Christ. But in the U.S., that version is more recent than most people tend to think. Two hundred years ago, relatively few U.S. churches observed the day in any form. As the historian Stephen Nissenbaum has shown, the secular Christmas of buying and giving largely predates the religious celebration. The secular variety was largely an invention of 19th-century merchants looking for a way to get buyers into their stores. So successful was the innovation that the nation’s churches were left scrambling to create services in order to compete for the attention of their own congregations.
Thus to be restricted in one’s ability to give is no small thing. As much as we might argue that the spirit of Christmas should be otherwise, the great majority of people give presents.(3) And gift cards, for better or worse, have taken center stage.
My mother taught me that what mattered most about a gift was the amount of thought that went into selecting it. Gift cards require little or none. Yet recipients love them. In fact, according to the National Retail Federation for the 13th year in a row they’re “the most popular items on wish lists,” finishing well ahead of clothing and accessories, which rank second. Other surveys have found similar results. Small wonder that consumers spend over $130 billion on gift cards every year. The lesson, surely, is that people would rather choose for themselves what to own.
The traditional giver goes to extraordinary lengths to prevent the recipient from learning how much a gift cost. (“Did you cut off the price tags?” we ask the clerk, usually far too late in the wrapping process.) But as social scientists have long pointed out, people judge each other by the value of gifts anyway. They difference is that once upon a time, recipients had to guess. In an era dominated by gift cards, they always know, to the penny, how much the giver spent.
But although the admission is a difficult one for a traditionalist to make, this might be a better system. Gift cards solve the problem of the deadweight loss associated with gift-giving: The fact that I might put in a lot of time selecting just the right $20 book for you doesn’t mean that you wouldn’t rather have spent the $20 on something else.
All of which brings us back to the litigation. Gift cards are the most widely desired present and, arguably, the most economically efficient one. If it’s true that the visually impaired have trouble giving them (and also receiving them), they’re being shut out from the system into which gift-giving is evolving. This might not tell us how the various legal cases should come out; but perhaps it tells us what retailers in good conscience should do.
(1) So far, it appears that the proprietor of a website who wishes to avoid litigation must bring the site into what is known as “AA” compliance with Web Content Accessibility Guidelines 2.0, also known as WCAG. But the Web Accessibility Initiative, who provides the standards, does not certify compliance. Instead, companies self-certify.
(2) As far as I’ve been able to determine, this opinion is available only on paywalled databases.
(3) Precise figures are not easy to come by. A 2018 report from YouGov puts the figure for gift-givers at 76% of adults. And, while we’re at it, a 2017 survey from Harris found that 70% of respondents would stop giving gifts if their friends and family did the same. (Talk about a prisoners’ dilemma!)
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Stephen L. Carter is a Bloomberg Opinion columnist. He is a professor of law at Yale University and was a clerk to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his latest nonfiction book is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America's Most Powerful Mobster.”
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