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ADA Signage: Intent Is Just as Important as the Letter-of-the-Law

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Over the years we’ve received many good questions regarding the ADA and signage, particularly with respect to aspects of ADA signage that are not well defined within the ADA, and in some cases not defined at all. In these cases we must still make a responsible interpretation, largely based on the intent of the ADA Standards.

Defendant Didn’t Violate Law But Department of Justice Sided with Plaintiff

Here’s a great recent example, albeit not specific to signage, in which the Department of Justice sided with the plaintiff even though it appeared that the defendant did not directly violate the law:

In January 2014, a blind individual attempted to purchase items using his debit card at a Lucky Brand Jeans store in Miami, Florida.  Most Lucky Brand Jeans stores have POS devices featuring touch screens only, so the devices have no tactile/Braille keys whatsoever.  A blind individual has no choice but to give their PIN number to a third party to enter into the POS device, or simply not use the debit card and submit another form of payment. The blind individual states that Lucky Brand Jeans has violated the ADA by failing to provide him and other blind individuals with the means to independently purchase items using a debit card, including POS devices with tactile key pads.

Lucky Brand Jeans made two interesting arguments against this claim that are not entirely unreasonable. First, they noted that the ADA does not have a specific requirement for POS devices to include tactile key pads. Second, Lucky Brand noted that since blind individuals can purchase items using cash, credit, or by processing their debit card as a credit card, there was no discrimination under the ADA. Ultimately, Lucky Brand’s arguments were not very strong, demonstrating that they did not consider the true intent of the ADA. With both of their arguments they implied that they were willing to live with blind customers not being able to purchase using debit cards.

The DOJ Was Not So Willing

Although POS devices are indeed not addressed in the ADA, an entity conducting a commercial transaction or public accommodation has the responsibility under the ADA to provide effective communication, in this case effective communication that would allow a blind or sight impaired person to interact with a POS device during a debit card transaction, and certainly without having to divulge their PIN to another party, which no one should ever have to do. Effective communication can include special devices that enable access and protect privacy at the same time, and which Lucky Brand Jeans did not provide. The argument for using other payment options didn’t fly with the DOJ either, as debit cards operate differently than credit cards and provide certain benefits over credit cards, so denying that as an option to some people and not others is a bad idea. And what if the customer only has a debit card as a method of payment? The DOJ determined that denying an individual the right to pay for goods with his debit card, when debit cards may be used by other customers, is in fact discriminatory. As of April 2014, the DOJ validated the plaintiff’s claim and will move forward with litigation. The likely outcome is that Lucky Brand will be directed to make the necessary modifications to their POS devices.

Viewing Letter-of-the-Law Not Enough with Ada Signage

Related to signage, we’ve seen the same types of scenarios in which viewing only the letter-of-the-law is not enough. Digital signage is a great example of this lesson. If you search the entire ADA for “Digital Signage” or even “Electronic Signage”, you will find zero results. Nothing. So, digital signage is exempt from the ADA, right? As is the case with POS devices, digital signage is still impacted by the intent of the ADA. First, the “Protruding Objects” section of the ADA also applies to wall-mounted digital displays, such that the digital sign cannot project out from a wall’s surface more than four inches. And second, “Reach Ranges” ensures that wheelchair-bound individuals can access the interactive functions on any wall-mounted operable device, which includes digital displays.

Who would have thought that the Lucky Brand Jeans case was primarily about accessibility to effective communication when it initially appeared to simply be a POS device issue? When reviewing these types of issues, the Department of Justice will always consider if the intent of the ADA was violated. Was an individual denied access to (not limited to) communication, employment, public buildings and transportation that other individuals can access?

As long as we think in these terms when exploring the gray-areas of the ADA as it applies to signage, then our solutions won’t be part of future DOJ litigation updates, and most important we will satisfy the signage and wayfinding needs of all individuals.

 

Andy Levine
Director of Corporate Education

 

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