By Jonathan Avila
There’s a good chance you think your institution is already accessible.
After all, accessibility has long been a key goal for banks and other financial institutions. In addition to being legally required under laws like the Americans with Disabilities Act (ADA), being accessible to individuals with disabilities is just good business. If your institution doesn’t offer services to customers with disabilities—about one in five people in the United States—then someone else will happily do it.
But technology has changed, and the accessibility solutions that worked in 2008 may not be enough in 2018. Solutions like Braille statements, accessible ATMs and dedicated phone lines for individuals using TTY/TDD (text telephone) equipment may have worked in the past, but many customers with disabilities want to be able to take advantage of today’s technology. That makes digital accessibility absolutely critical.
Digital accessibility, if you’re not familiar with the term, means making sure your website, mobile apps, and other electronic resources are able to be used and navigated by customers with a wide range of disabilities.
For banks and other financial institutions, that means ensuring your customers with disabilities can log into your website or use your mobile app to do all the things abled customers can do, including check their balance, pay bills, transfer funds, or even deposit checks. Customers with disabilities want to be able to do these things on their own devices, on their own time frames, just like everyone else. And if they can’t do them on your website or app, they’ll look somewhere else.
Or, they might send a demand letter or file suit for a court order requiring you to make your website or app accessible.
Digital accessibility litigation and the financial sector.
The past few years have brought an explosion in digital accessibility lawsuits. In 2017 alone, at least 814 lawsuits alleging inaccessible websites were filed in federal courts across the country, as well as an uncounted number of cases filed in state court. Increasingly, many of those lawsuits have targeted financial institutions like banks.
Last year, for instance, community banks across the country started receiving demand letters from the accessibility advocacy group Access Now, Inc., complaining about the inaccessibility of their websites. In November 2017, the Independent Community Bankers of America (ICBA) reached a settlement with Access Now on behalf of its members, in which it promised to develop “voluntary access principles” for its members, to be implemented by December 31, 2020. The settlement, however, does not protect ICBA or its members from lawsuits from other plaintiffs.
You’ve likely also heard about the wave of lawsuits against credit unions. While courts have dismissed some of these suits where plaintiffs were not eligible for membership in the credit union being sued, this defense is unlikely to work for banks and other financial institutions that don’t have strict membership criteria. Even credit unions may only have a temporary reprieve until a different plaintiff eligible for membership files suit.
But while drive-by ADA lawsuits get the most press, banks also need to worry about suits filed by their own existing customers. In a pair of recent cases against Morgan Stanley and TD Ameritrade, long-standing customers complained of the inaccessibility of both institutions’ websites. In both cases, the plaintiffs claim to have attempted to contact the investment banks about their problems prior to filing suit, but no action was taken to remedy the issues. The two cases thus emphasize the importance of working with existing customers when they bring accessibility issues to your attention.
The TD Ameritrade case is also noteworthy because the plaintiff was formerly a client of Scottrade and had its website for years without difficulty. After her account was transferred to TD Ameritrade after its acquisition of Scottrade, however, she was no longer able to access her account online. Clients can be justifiably frustrated when they lose existing functionality, making it especially important to consider accessibility in the context of mergers and acquisitions, as well as during website and app relaunches.
Unfortunately, the current wave of digital accessibility litigation does not look like it will end anytime soon. While many hoped the Department of Justice (DOJ) would resolve many of the outstanding questions by adopting clear website accessibility regulations that it had been working on since 2010, in mid-2017 the DOJ placed the proposed rules on an “inactive actions” list, and at the end of the year the Department withdrew its notice of intent to regulate on the subject entirely.
Although many—including both business organizations and members of Congress—have since encouraged the DOJ to reconsider the issue of website accessibility, it is thus far not clear if or when it will do so. In the meantime, digital accessibility litigation will likely continue to increase.
What can your bank do?
The good news is that there are steps your bank can take today to minimize the risk of a website accessibility lawsuit.
While the DOJ hasn’t adopted a formal standard for website accessibility, there is an industry standard: the Web Content Accessibility Guidelines (WCAG), developed by the World Wide Web Consortium (W3C). The WCAG 2.0 guidelines have been broadly adopted by courts and government agencies, including the United States Access Board in its refresh of the Section 508 standards, and the Department of Transportation in its regulations under the Air Carrier Access Act. It was even strongly advocated by the DOJ in court filings prior to 2017.
In early June, W3C released its long-awaited WCAG 2.1, which builds on and extends the WCAG 2.0 guidelines. Among the major additions are success criteria specifically designed to address mobile sites and apps.
But how do you know if your website and apps comply with WCAG?
In an ideal world, you would build accessibility into your site and apps from the ground up. But, this isn’t an ideal world, and many of us are working with legacy sites and code that can’t be easily rewritten. So, what do you do?
Your first step—assuming you haven’t been sued—is to talk to a digital accessibility expert who can audit your site to tell you where the problems are and help you prioritize the most critical fixes to get your site accessible as quickly as possible—and help keep it that way. (If you’ve already been sued or received a demand letter from a plaintiff’s law firm, you’ll want to talk to your lawyers first.)
If you don’t already have one, your institution should also implement an accessibility policy that covers your websites, apps, and other digital assets. Making sure customers have somewhere to turn when they face difficulty accessing your site can sometimes mean the difference between solving a problem amicably and having it turn into costly litigation. Having an accessibility statement, a feedback mechanism for users with disabilities and a resolution policy will help to ensure issues reported by users with disabilities get to the right people and are addressed rather than leading toward litigation.
Regardless of whether your primary concern is minimizing litigation, avoiding bad PR, serving your clients better, or even just doing the right thing, it’s critically important to make your website and apps accessible to everyone, regardless of disability.
Jonathan Avila is chief accessibility officer at LevelAccess, an ABA endorsed solution that works with financial institutions of all sizes to protect them from the legal risks associated with digital accessibility and litigation under the ADA.
Jonathan will be leading a session on digital accessibility at the 2018 ABA Bank Marketing Conference in Baltimore, September 23-25. Learn the current requirements, gain best practices for accessibility and experience what good accessibility looks like and how it can empower your team’s efforts.
