Modern touchscreen systems, like other modern computers, phones, and tablets, are readily adaptable for use by blind people through mechanisms such as tactile keyboards that a user can feel nonvisually and audio ports for plugging in headphones so the system can “speak” privately to users. (Both of these are in widespread use at bank ATMs, for example.)
A company that does not include these common accessibility features when installing a touchscreen system excludes many disabled customers. Blind customers must then depend on employees or others to tell them what is on the screen and to enter private data on their behalf, such as security codes and phone numbers. This kind of unequal access is prohibited by federal law, along with the laws of many states.
In July of 2015, the National Federation of the Blind and several of its members, represented by Timothy Elder, Scott LaBarre, Jana Eisinger, and Jeremy Weltman, filed a class-action lawsuit on behalf of all blind customers against the Container Store because it chose not to provide such mechanisms.
The Container Store’s point-of-sale terminals showed important information to customers but had no mechanism for blind customers to read it for themselves. To complete many transactions, blind customers had to publicly tell employees their private security codes. And when blind customers signed up for The Container Store’s loyalty program, the “fine print” of the terms and conditions—which they could not read—prohibited taking their discrimination claims into a court of law. Although visually impaired customers couldn’t even read them to learn about the provision, the fine print even allowed The Container Store to change these terms and conditions at any time, for any reason, and with no notice to anyone.
The Container Store tried to get the case thrown out of court because of these effectively invisible one-sided terms and conditions. A federal judge rejected their argument and the Container Store appealed. The appellate court ultimately ruled in favor of the blind consumers.
Arbitration and Class Actions
The loyalty program’s terms and conditions, which blind customers supposedly agreed to when they signed up for the program in the store, required any disputes, including allegations of civil-rights and disability discrimination, to be resolved through private arbitration and not in a court of law. Customers in the loyalty program were also forbidden from pursuing redress for problems as part of a group, or “class action,” lawsuit.
Arbitration, though it can be a valuable alternative to costly courtroom litigation, is also generally conducted in private, which often means that serious legal violations and harms are hidden from the public and from investors. Forcing customers into arbitration when critical civil rights issues are at stake can often do a disservice to the public as a whole as companies can much more easily avoid pressure to make systemic changes that would benefit large numbers of people.
When private arbitration is combined with a prohibition on customers collaborating as part of a broader “class” of people harmed, it is even harder to obtain systemic fixes from a recalcitrant corporation. Each customer must proceed individually, independently, and privately, and any redress is usually available only for that particular customer—thereby jeopardizing the systemic change contemplated by civil-rights enforcement in the courts.
Arbitration + a prohibition on class aggregation = a threat to the very core enforcement mechanisms of civil rights laws: private lawsuits funded and led by private individuals and attorneys rather than federal and state government agencies paid for with taxpayer money.
Lack of Assent by In-Store Plaintiffs Means No Contract
A contract requires both parties to assent(agree) to its terms. But what happens if a person is blind and unable to read the contract because the retailer refuses to make it accessible for them to actually read it? That’s the situation in this case.
As Karla Gilbride of Public Justice, who argued the appeal before the Court of Appeals, explains, The Container Store sought to enforce their contract written in what was essentially “invisible ink” from the perspective of blind customers:
Even though technology for making printed text accessible to blind people is in widespread use, from audio feedback to Braille displays, the Container Store provided no such tools—it simply continued to display the text on its point-of-sale interface in the equivalent of invisible ink …
The First Circuit agreed, writing that “the in-store plaintiffs had no way of accessing the terms of the loyalty program, including the arbitration agreement, that appeared on the touch screen [and] no store clerk actually informed them that an arbitration agreement existed as a condition of entering the loyalty program.” As a result, there is no evidence that the plaintiffs “manifested their assent to arbitrate during enrollment.”
The Container Store argued that, despite this reality, blind customers should still be bound by the contract despite being unable to read it. Since there was no evidence that these blind customers knew about these arbitration terms when enrolling in the loyalty program, the First Circuit rejected The Container Store’s attempt to force these plaintiffs out of court and into arbitration.
“Illusory” Terms & Conditions for Everyone
The Container Store, in an attempt to both shield itself from ever being held responsible in a public courtroom and to also provide itself with maximum flexibility, wrote a contract granting itself the right to “change, modify, cancel, add or remove any or all portions of these terms … at any time.”
Since a contract is something that binds both parties and gives something of value to each of them, a clause allowing The Container Store to change anything about the loyalty program at any time, means that The Container Store never committed to give anything of value to its customers at all. An agreement that binds one party and not the other is not a contract at all: it is, in its entirety, an “illusory contract.”
As a result of the victory in this appeal, no one—whether blind or sighted—can be forced out of a public courtroom and into private arbitration by the overreaching terms and conditions of The Container Store’s loyalty program.
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