ADA lawsuits targeting kiosks, part 2: why legal confusion reigns
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The Americans with Disabilities Act prohibits discriminating against people with disabilities and requires businesses to ensure such individuals have equal access to goods, services and information.
When the ADA released its most recent requirements in 2010, however, the agency did not give extensive specifications for making equipment accessible to the disabled in most use cases. As a result, manufacturers of kiosks and other devices have not had clear guidelines in meeting the ADA requirements.
This lack of clarity has led to more than a couple instances where people with disabilities have encountered problems when trying to use self-serve kiosks. Several people have since filed lawsuits, claiming that the kiosks had not met ADA requirements.
Will the law determine function?
The vagaries of the ADA law could result in a situation in which lawsuits determine what functionalities kiosks must provide to comply with the law.
The only specific requirements that apply to most kiosks have to do with forward and side reach. For example, if a kiosk can be accessed via a forward reach and is unobstructed, the maximum height of the touchscreen must be 48 inches and the minimum height of the touchscreen 15 inches.
While these requirements have been helpful, they do not cover all access issues that a person with a disability could encounter. Equipment that meets these requirements is often listed as "ADA compliant," when in fact, some of this equipment may not meet the needs of the blind and/or those hard of hearing.
"It's very typical for a hardware manufacturer to state that their product is ADA compliant simply because of its physical dimensions or that it can be equipped with a keypad that offers a tactile interface to navigate visual, menu-based information that is presented on the touchscreen," said Tom McClelland, president of DynaTouch, a self-service kiosk solutions provider.
"The lack of commonly understood and commonly deployed assistive technologies is a large and growing problem for the self-serve kiosk industry," he said. "ADA compliance is about the solution, not the hardware or the software or the content. The solution is the careful integration of all three of those."
Peter Berg, project coordinator for technical assistance at the ADA National Network, an organization funded by the U.S. Department of Health and Human Services, said to the best of his knowledge, the Justice Department has not taken any action over ADA compliance claims.
He would not be surprised, however, if such claims run afoul of some states' consumer protection laws.
"If someone alleges their product does X, Y and Z and it doesn't do X,Y and Z, someone could argue that's fraud," Berg said.
The bigger issue, however, is how well the needs of the disabled are being addressed.
"There are very good guidelines out there that allow accessible technology to be developed," Berg said.
The ADA does contain more specific standards for ATMs, fare vending machines, vending machines and fuel dispensers.
If an ATM, for example, provides additional functions such as dispensing coupons, selling theater tickets or providing copies of monthly statements, all such functions must be available to customers using speech output.
Federal agencies' kiosk requirements
Section 508 of the U.S. Government's Rehabilitation Act also has more extensive requirements for federal government kiosks, digital signage, websites and other IT systems. It requires government agencies to provide disabled individuals with access to electronic and information technology.
Section 508 has been cited by some industry observers as the best standard for assisting hard of hearing and visually impaired people.
The most commonly deployed assistive technologies are user-selectable video and audio settings, external audio headset connectors, adjustable screens and keyboard- or keypad-driven selections, McClelland said.
"Most government kiosks have at least rudimentary assistive technologies (user selectable settings, audio headset connectors, etc.), however, not many have taken advantage of more comprehensive technologies required for extremely disabled users or those who are unsighted," he said. "But the trend is changing, due to more public awareness."
Why improving access is critical
Meanwhile, the need to improve access for the disabled community as a whole is critical. Many self-serve machines that sell products can only be identified by sight, for example.
The ADA requires public accommodations to provide "appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities," unless the public accommodation "can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense."
Hence, the lawsuits continue.
Redbox faced two class actions alleging that its DVD rental kiosks are not accessible to the blind. The first was filed in 2012, and after two years, the parties entered into a California-wide class settlement under which Redbox agreed to incorporate audio guidance technology, a tactile keypad and other accessibility features into its DVD rental kiosks in California; provide 24-hour telephone assistance at each kiosk; and pay $1.2 million in damages, $85,000 for kiosk testing, $10,000 to each named plaintiff in damages, and $800,000 for plaintiffs' attorney fees and costs.
The second class action suit was filed in 2014 and resulted in a proposed settlement, the terms of which are still being negotiated.
In 2015, three separate class actions were filed against Moe's, Walgreens, and Five Guys for having inaccessible drink dispensers, the Coca-Cola Freestyle machine. The plaintiffs argued that these dispensers should have had technology to allow the plaintiffs to use the machines independently. In one case, a district court held that "under the ADA, effective assistance from Moe's employees acting as ‘qualified readers' is sufficient" and that the restaurant was not obligated to provide blind accessible drink dispensers.
In 2016, blind plaintiffs sued Panera for having iPad touchscreen kiosks for self-ordering in cafes they claimed were not accessible to the blind. That case was settled quickly, not providing much insight into the public accommodations requirements courts may seek to impose.
Elliot Maras Elliot Maras is the editor of KioskMarketplace.com and FoodTruckOperator.com.