Paper Money Discriminates Against the Blind, Appeals Court Says

A divided D.C. Circuit Court of Appeals has ruled 2-to-1 that paper money discriminates against the blind in violation of the Rehabilitation Act, in American Council of the Blind v. Paulson.  The ruling upheld a controversial trial court ruling in November 2006 that paper money discriminates because it lacks features that the blind can use to easily distinguish between different denominations, such as bumps or different sizes or shapes. 

Sarah Waldeck observed that that ruling was judicial overreaching, for two reasons. First, the Rehabilitation Act and other disabled-rights laws only guarantee the disabled meaningful access to services and transactions, not perfectly equal access, and the blind have such access, through use of credit and debit cards and other payment options and innovations, which reduce the risk that merchants will defraud unknowing blind people. Second, most of the burden of redesigning the bills (indeed, an undue burden) would fall not on the Treasury Department but on merchants, vending machine operators, and other third parties.

The appeals court wrongly gave short shrift to the burden imposed on third parties, suggesting that it did not even need to be considered, even though other federal court rulings recognize that an institution is not required to accommodate a disability or religious practice if doing so would unduly burden third parties.  (Thus, as another federal appeals court has observed, “an employer is not required to accommodate an employee’s religious need if it would ‘impose personally and directly on fellow employees.’”  EEOC v. Firestone Fibers & Textiles Co., 515 F.3d 307, 317 (4th Cir. 2008)).  As Judge Randolph noted in dissent, “There are approximately 7,000,000 food and beverage vending machines in the United States; by one estimate, it would cost $3.5 billion to retool or replace these machines.”

The National Federation of the Blind, the best-known advocacy group for the blind, also opposed that ruling, fearing that it will reinforce stereotypes employers have of blind people being unable to function in society or perform everyday tasks.  The government cited counterfeiting and other concerns that make redesigning paper money risky and costly.  I’ve handled disabilities-discrimination cases as a government and private lawyer in the past, and the appeals court’s ruling strikes me as dubious at best.

(In discussing a lawsuit by blind people against Target, I previously discussed the potentially enormous burdens and chilling effect on speech of lawsuits seeking to force companies to redesign their web sites to accommodate the blind.  These burdens may exponentially increase if Congress passes pending bills such as the ADA Restoration Act that would dramatically expand liability for failing to accommodate disabilities, expand the definition of “disabled” to include the vast majority of Americans, and define even easily-correctable visual and other impairments as disabilities.)

Although the trial judge had merely ruled that paper money violates the law, not that any particular remedy demanded by the plaintiffs for that violation was proper and not an undue burden, Judge Randolph’s dissent argues that his appeals court colleagues’ ruling improperly went beyond the very ruling they purported to uphold by rejecting, out of hand, any “undue burden” objection by the government to particular requests by the plaintiff to redesign paper money in sweeping ways, regardless of whatever facts come to light in further trial court proceedings.