Avoiding the Website Accessibility Shakedown

By Toni Cannady and Teshale Smith

Website accessibility demands are on the rise, and mobile apps may be 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 eight years ago, the Department of Justice (DOJ), the agency charged with writing regulations and enforcing the Americans with Disabilities Act (ADA), began the rulemaking process to establish a standard for website accessibility under the ADA. Subsequently, DOJ has asserted that an accessible website is an existing requirement under of the ADA for businesses, even in the absence of a legal standard defining the technical requirements of an accessible website.

However, under the Trump administration, DOJ has shifted its regulatory priorities regarding website accessibility. On December 26, 2017, DOJ placed its website accessibility rulemaking on the “inactive list” of its Unified Regulatory Agenda, a document that informs the public of planned regulatory actions of the agency. DOJ did not, however, state publicly that it has reversed its position that website accessibility is required under the ADA.

As a result, the number of ADA demand letters and lawsuits filed by private plaintiffs against financial institutions and other businesses continue to increase. According to law firm Seyfarth Shaw, ADA lawsuits increased by 37% between 2015 and 2016. By May 2017, ADA lawsuits increased by 18%, and the numbers are steadily climbing. In 2017, there were at least 814 ADA Title III website lawsuits filed.

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

Carlson Lynch Sweet & Kilpela LLP, a Pittsburgh-based firm, began this crusade in 2016 when it sent a number of demand letters to banks demanding they make their websites accessible. Many banks 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 to enforce their demand. In cases where the court case is proceeding, banks and other companies have typically settled to avoid further litigation costs as attempts to dismiss the suit are often, if not always, denied.

Although website accessibility is no longer a top priority of the DOJ, businesses are losing website accessibility cases in the courts. Even though the lack of promulgated regulations has led to inconsistent opinions by state and federal courts, the court’s track record in favor of businesses is discouraging.

These demands for ADA compliance raise many questions: namely, the legal requirements under Title III for websites and mobile apps.

Title III Requirements

The ADA, which was signed into law on July 26, 1990, creates a comprehensive nondiscrimination mandate which serves to ensure equal access to goods and services for persons 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 businesses, including banks, to provide “auxiliary aids and services” to ensure “effective communication” with customers 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.

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 early stages of the rulemaking imitated in 2012. 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. More information about WCAG is available here.

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 companies’ mobile apps precluded individuals with disabilities from having equal access to H&R 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

In light of the increasing risk of demand letters and lawsuits, ABA encourages banks to:

  1. Audit your website accessibility. Consider having an expert audit your website to determine what content, if any, would not be considered accessible and in conformance with WCAG 2.0, level AA.
  2. Adopt an accessibility policy and standard for your bank. WCAG 2.0, level AA would be the safest choice.
  3. Appoint person(s) to oversee all electronic information technology (EIT) accessibility issues. Review new technology for accessibility.
  4. Train your website team. Make sure your in-house website team is aware of the proposed and anticipated standard (WCAG 2.0, level AA) and that bank management understands the threat presented by private litigants.
  5. Direct departments to create an implementation plan.
    • Identify EIT in use and access accessibility.
    • Develop plan for providing access to inaccessible EIT.
    • Develop interim accessibility plan.
  6. Create an accessibility webpage. Include information on accessibility and a process for reporting website access problems and getting help.
  7. Require accessibility in vendor contracts.
  8. Conduct annual audits for conformance with WCAG 2.0, level AA.

Toni Cannady is a law student at The Catholic University of America, Columbus School of Law. Teshale Smith is a research assistant with the American Bankers Association’s Center of Regulatory Compliance. Email: [email protected]a.

Editor’s note: This article is a revised and updated version of a piece previously published in the ABA Banking Journal in 2017.

Learn more about the current requirements and best practices for digital accessibility at the 2018 ABA Bank Marketing Conference in Baltimore, September 23-25.