Avoiding the Website Accessibility Shakedown

By Toni Cannady

Website accessibility demands are on the rise, and mobile apps are next. While “a picture is worth a thousand words” to most, it is meaningless to someone who is blind. Similarly, other features provided on websites and mobile apps are useless to those with other disabilities absent built-in accessibility features.

Nearly six years ago, the Department of Justice began the rulemaking process for website accessibility provided by covered entities under the Americans with Disabilities Act. Today, DOJ—the agency charged with enforcing ADA—continues to delay the issuance of Title III website accessibility regulations until 2018. But banks cannot wait until 2018. Demands for accessibility to websites are circulating now.

This comes as no surprise. For years, plaintiffs’ firms have used the ADA to obtain large sums of money from companies, including banks. This trend began with physical barriers, then moved on to ATMs. Most recently, a growing number of plaintiffs’ firms have been sending demand letters to various companies, including banks, alleging that people with disabilities are denied access to online goods and services in violation of ADA. The letters seek an out-of-court settlement, injunctive relief and attorney’s fees and costs.

Since the beginning of 2015, more than 244 federal lawsuits have been filed throughout the country against companies of all sizes, including banks. Carlson Lynch Sweet & Kilpela LLP, a Pittsburgh-based firm, continues to lead this crusade to demand that banks and others comply with WCAG 2.0 AA. WCAG 2.0 AA is a technical standard published by the World Wide Web Consortium and one which DOJ apparently prefers—but has not yet adopted. Many cases settle after receipt of the demand letter without suit being filed. However, in some cases where no settlement is reached, plaintiffs have proceeded to court. In such cases where the court case is proceeding, banks and other companies have typically quickly settled to avoid further litigation costs as attempts to dismiss the suit are often, if not always, denied.

These demands for ADA compliance raise many questions for covered entities—specifically about the legal requirements under Title III for websites and mobile apps.

Title III requirements

Since the enactment of ADA in 1990, public accommodations have been required to be accessible to people with disabilities. Under this general mandate, the meaning of “accessibility” and banks’ obligations are ever-changing as new technologies evolve.

Title III of the ADA specifically requires public accommodations, including banks, to provide auxiliary aids and services to ensure effective communication absent an undue burden or fundamental alteration to the goods and services. However, considering the resources of most financial institutions, it is unlikely that DOJ or a court would conclude that website accessibility modifications would cause undue burden to a bank.

This obligation is a top priority at DOJ. In 2010, DOJ amended the definition of auxiliary aids and services to include “accessible electronic information technology (EIT).” Thus, banks are required to provide accessible EIT to ensure effective communication with individuals with visual, hearing, motor and cognitive disabilities. DOJ continues to affirm this analysis through its longstanding position that public accommodations have an existing duty to provide an accessible website, even in the absence of a legal standard. With that in mind, banks should begin to carefully assess their websites and mobile apps for accessibility deficiencies.

What’s the legal standard?

There is none, at least officially. However, all signs point to WCAG 2.0 AA for websites. WCAG 2.0 AA is the website accessibility standard incorporated into DOJ’s settlement agreements, used in its enforcement actions and considered in the most recent supplemental advance notice of proposed rulemaking issued by DOJ in April 2016. The standard seeks to ensure that people with disabilities can access online information by providing coding guidelines to assist website developers in crafting accessible websites.

Unlike websites, there is no universally accepted standard for mobile applications, and no indication from DOJ as to what an accessible mobile application entails. However, DOJ mentioned mobile apps when it intervened in the National Federation of the Blind’s lawsuit against H&R Block in 2013, noting that the tax preparation company’s mobile apps precluded individuals with disabilities from having equal access to H&R Block goods and services, an indication that mobile apps are on the agency’s enforcement radar.

In the absence of a legal standard, courts continue to use a very practical rather than technical analysis regarding the definition of accessibility. Specifically, they look to whether disabled individuals are able to use the website and access the companies’ products, goods and services. The ADA requirements and this analysis also apply to bank websites provided by third-party vendors. They do not, however, apply to unaffiliated websites accessed through a link on a bank’s website.

Next steps

As an initial step to mitigate legal risks and ensure website accessibility compliance, banks should assess their websites and seek expertise from website accessibility consultants to ensure their websites provide equal access to the online goods and services for those with disabilities.

In addition to conducting audits, banks should implement accessibility policies and procedures and provide these protocols on the company’s website in addition to a portal for customers to provide feedback. With the recent surge of accessibility complaints, having a place for customers to report critical website accessibility concerns allows banks to evaluate potential risks and take steps to identify lingering website accessibility issues.

More difficult may be third-party vendors’ cooperation. Banks should include WCAG 2.0 AA compliance in vendor contracts. Simply stating “the vendor will comply with the law,” is not enough, particularly in the website accessibility space, where at present there is neither statutory text nor regulation providing a legal definition for website accessibility.

Equally important, banks should train employees responsible for website and mobile app maintenance. WCAG 2.0 is a very technical standard requiring sound expertise. Banks should be diligent and ensure adequate training and WCAG certification for its website experts.

Finally, banks should recognize that accessibility is a continuing obligation. Bottom line? Website accessibility requires continuous auditing, monitoring and review of websites and mobile apps to ensure accessibility.

 


Learn More about Website Accessibility for Bankers
ABA continues to use a number of avenues to disseminate ADA developments, including working with state associations to alert members and facilitate management and response to demand letters. In November, ABA hosted a website accessibility briefing with guest speakers Minh Vu, partner and ADA Title III team leader at Seyfarth Shaw LLP, and Preety Kumar, founder and CEO of Deque Systems, highlighting the legal landscape, DOJ and plaintiff’s firms’ pursuit of companies and substantial accessibility challenges surrounding WCAG 2.0 AA. ABA also updated a staff analysis in January to add details of the current state of the law and offer suggestions to banks seeking to resolve website accessibility deficiencies.


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About Toni Cannady

Toni Cannady
Toni Cannady is a senior research assistance in ABA's Center for Regulatory Compliance.