Do self-serve POS devices risk ADA-type lawsuits?

Michael Chilleen

In several industries, including restaurants, point-of-sale self-service devices (POS) have become a very popular way to offer a variety of services and products. One result: there has been an increase in disability access lawsuits filed against companies alleging that their POS devices are not accessible to disabled individuals in violation of the American with Disabilities Act (ADA). 

Generally, these ADA lawsuits fall into one of the following categories:

(1) Lawsuits alleging that POS devices are not accessible to persons with mobility impairments. For example, POS devices that are mounted too high or set at angles such that a wheelchair user cannot push the buttons or see the display screen 

(2) Lawsuits alleging that POS devices are not accessible to the hearing impaired. For example, POS devices with audio instructions that are not properly captioned for the deaf.

(3) Lawsuits alleging that POS devices are not accessible to the visually impaired. For example, touch screen devices that do not offer tactile feedback. 

Right now, the foodservice industry is capitalizing on new POS devices to better serve their customers, offering everything from tabletop tablets to interactive mobile apps. For example, a number of restaurants now use pay-at-the-table screens that allow customers to order food, play games and pay the check without the assistance of a waiter. Other POS devices allow restaurants to collect data about their customers and their experience through surveys. 

The ADA does not provide guidance for all of these different types of POS units However, the ADA’s 2010 Standards for Accessible Design do contain technical requirements for somewhat similar devices including automated teller machines (ATMs), vending machines and change machines. For example, the ATM standards specify the following:

• A clear floor or ground space complying with section 305 of the ADA shall be provided.

• Operable parts shall comply with the reach range requirements of section 309. 

• Machines shall be speech enabled. Operating instructions and orientation, visible transaction prompts, user input, verification, error messages, and all displayed information for full use shall be accessible to and independently usable by individuals with vision impairments. Speech shall be delivered through a mechanism that is readily available to all users, including but not limited to, an industry standard connector or a telephone handset. Speech shall be recorded or digitalized human, or synthesized.

• At least one tactilely discernible control shall be provided for each function. Where provided, key surfaces not on active areas of display screens, shall be raised above surrounding surfaces. Where membrane keys are the only method of input, each shall be tactilely discernible from surrounding surfaces and adjacent keys.  

• The display screen shall be visible from a point located 40 inches above the center of the clear floor space in front of the machine. 

The requirements are clear. Yet there are no specific ADA standards for the many other types of services and products offered by POS devices like the ones now being increasingly used by restaurants. Due to this lack of guidance, plaintiffs and the courts have relied on the general provisions of the ADA. 

These provisions include not only clear space and reach range standards, but the requirement of “effective communication” with the blind and deaf. The conflicting standards reached by various courts offer no clear guidelines for businesses. Until there is more clarity and uniformity among the courts, determining whether a particular POS complies with the ADA requires a fact-intensive, device-by-device inquiry.

The availability of hefty damages in many states increases the potential exposure businesses face. For example, in California, a single violation with respect to a POS device entitles the plaintiff to a minimum of $4,000 in statutory damages, plus his or her attorney’s fees and litigation expenses. Potential liability can be overwhelming when this type of lawsuit is brought as class actions.

What should restaurant operators do? Until the legal landscape becomes more clear, it would be prudent for businesses to evaluate their POS devices and to consider options that are accessible and independently useable by individuals with a variety of disabilities. 

Michael Chilleen specializes in defending disability access class action claims under the Americans with Disability Act (“ADA”) and state law for the Sheppard Mullin law firm. Reach him at 714-513-5100.