Knowledge and Insights

Banks continue to receive demand letters from attorneys claiming that their websites are not compliant with the Americans with Disabilities Act (ADA) of 1990. Should you be worried? In this article, we will summarize the current situation on ADA so you can decide and prepare accordingly.

Purpose of the ADA

The ADA prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation. It also mandates the establishment of TDD/telephone relay services.

ADA current regulations are summarized as follows:

• Title II (State and Local Governments)
• Title III (Public Accommodations and Commercial Facilities). This is where banks typically fall and where website compliance fits in.
• ADA Amendments Act Final Rule
• Movie Captioning and Audio Description Final Rule

Public accommodations are generally businesses that are open to the public and fall into one of 12 categories, including retail stores, banks, restaurants, hotels, theaters, doctor’s offices and pharmacies, museums, etc.

The Accessibility Services for banks generally encompass the following:

• Branches: Wheel-chair access and ramps in locations with steps.
• ATMs: Plug-in audio jack at ATM locations and listen to private spoken instruction. Also includes Braille on keypads.
• Telephone Banking: Follow telephone prompts for services and information.
• Website: Assistive technology for disabled persons using computers, tablets, and smart phones, which includes screen readers, text enlargement software, and computer programs that enable people to control the computer with their voice.

Common barriers experienced by banks when it comes to Accessible Technology are incompatibility with speech recognition or screen reading software, lack of text-based alternatives to media content, poor color contrast or small text size; and transaction timing requirements that do not take into account intellectual disabilities.

Basic Elements for Accessibility

Once a self-assessment of the current website is done, it is prudent for the bank to include the following elements that are considered basic.

• Provides text alternatives for any non-text content;
• Provides alternatives for time-based media;
• Includes content that can be presented in different ways without losing information or structure;
• Is easy to see and hear, including separating foreground from background;
• Permits all functionality from a keyboard if needed (as opposed to a cursor);
• Permits sufficient time to read and use content;
• Is not designed in a way that is known to cause seizures;
• Includes ways to help users navigate, find content, and determine where they are;
• Includes text content that is readable and understandable;
• Operates and appears in predictable ways;
• Helps users avoid and correct mistakes; and
• Is compatible with current and future user agents, including assistive web technologies.

The Current State of Litigation

Circa 2006, many private litigants threatened to file legal action for allegedly inaccessible websites and mobile applications for people with certain disabilities. The law does not clearly state if websites and mobile applications need to comply or are considered places of public accommodation as it pertains to ADA. The U.S. Department of Justice (DOJ) appeared primed to propose the Web Content Accessibility Guidelines (WCAG) 2.0, Level AA, as the standard required for public accommodations in the private/non-government sector. Then, in late 2015, DOJ announced that it would not finalize regulations to explain what constitutes accessible website content for public accommodations under Title III until fiscal year 2018 at the earliest. Recent developments now bring into question this 2018 target.

The Consequences of Noncompliance

Waiting until 2018 could have costly consequences. Law firms representing private litigants have become increasingly aggressive in recent months in pursuing retailers regarding their website accessibility. A typical approach involves receipt of a letter from a law firm asserting that the retailer’s website is not accessible and offering to discuss an “agreed plan” for bringing the website into compliance. The threat typically also insists on payment of significant attorney’s fees and sometimes alleged damages as terms to settle. Even more importantly, businesses are potentially missing out on e-commerce with disabled customers who are unable to navigate their websites or mobile applications. If your website is not in compliance with ADA (even before the proposed regulation in 2018), you can still expect to get sued. Large retailers have been sued for noncompliance and alleged discrimination to blind persons regarding their websites.

National Federation of the Blind (NFB) vs. Target Corp.

A class action lawsuit was filed on February 7, 2006 in the Superior Court of California and subsequently moved to federal court challenging the ADA, specifically Title III’s provisions prohibiting discrimination by “places of public accommodation” apply to websites and/or the Internet. The NFB sued Target claiming that blind people were unable to access much of the information on the defendant’s website. In September 2008, a settlement was reached and Target paid $6 million to compensate members of the California subclass with changes made to Target’s website and policies.

Additional Court Cases

In November 2015, a legally-blind man filed a lawsuit in federal court against the National Basketball Association’s website for not accommodating the blind and visually impaired.

In November 2015, Reebok was involved in a class action lawsuit alleging its website violates the ADA because it is not accessible to the blind. Plaintiffs argued that Reebok.com contains thousands of access barriers that make it difficult – if not impossible – for blind customers to use the site.

The U.S. DOJ settled a lawsuit with Peapod over website compliance issues. DOJ claimed that it was not possible for someone with a visual handicap to use Peapod’s online shopping service. Key components of a site’s compliance is the presence of descriptive text either on the page or in media tags. As a result, Peapod invested in the resources to overhaul their online platform.

What Should Banks do?

• Banks should evaluate their costs and the potential benefits of incorporating website accessibility design sooner rather than later. If a revamp on a company’s website or mobile application is needed, now could be the best time to make changes.
• For banks and credit unions investing in a website redesign, being aware of conformance standards is imperative. Creating a website that is non-discriminatory should be part of the plan. Offer a website service that will not be “denied” to certain users, i.e., a blind customer cannot find or apply for a certain financial product because of the way information is presented online.
• A financial institution needs to provide online access to a variety of services to their clients. The same services must be made available to everyone, regardless of their physical ability. This is similar to wheelchair ramps or audio-assisted ATM’s that have now become commonplace.
• Run a scan to identify the critical changes to be made.
• Monitor or audit your website on a regular basis to ascertain changes that need to be made.
• Have an independent consultant review and evaluate your website content for website accessibility and conformance with ADA guidelines in preparation for upcoming regulatory changes.

For more information regarding your financial institution’s website compliance and the ADA, please contact me at [email protected] or 609-689-9700.