The Current State of ADA Digital Enforcement

By Tim Springer

Over the past few years, a new risk and compliance concern has arisen in the banking industry: digital accessibility. Digital accessibility is the usability of digital systems—typically websites and mobile apps—for people with disabilities. Examples can include someone who is blind and uses screen reading software or someone with Parkinson’s who uses voice control software instead of a mouse or touchpad.

Digital accessibility is typically considered in the context of conformance to the Americans with Disabilities Act. The ADA prohibits discrimination against individuals with disabilities in all aspects of public life including access to banking services. Since the ADA was passed in 1990, before many digital services existed, it does not specifically reference websites or apps. However, in a variety of jurisdictions, the ADA is viewed as applying to digital locations as well as brick and mortar banks, although it is possible the Supreme Court will address dueling court interpretations in the future.

The attention paid to digital ADA compliance has risen sharply in recent years. This tracks with the explosion of private-party lawsuits under the ADA and related state laws in the same timeframe. For a little context: In 2016, there were about 260 of these lawsuits filed. In 2021, there are likely to be around 4,600. This growth is driven by more plaintiffs’ firms entering the space and filing more lawsuits. The lawsuits also are growing more complex: Around 60 percent of these cases are now filed as class actions. Further, those numbers only include filed lawsuits. The number of demand letters is generally considered to be five to 10 times this amount. The current situation is a robust plaintiff litigation environment with all signs pointing to significant and sustained growth.

How do banks reduce the risk of these suits and enable a strong, defensive position should such an accusation arise? When seeking to comply with the requirements of the ADA, banks can focus on two main areas: system compliance on one hand and policy, practices and procedures compliance on the other.

Systems compliance is the first place most organizations start. It focuses on assets the bank makes available to the public—websites, apps, etcetera. At Level Access, we assess the compliance of these systems by looking at two big questions:

• Coding: Was the site built in a way that is reasonably likely to support accessibility needs of people with disabilities? Compliance is assessed with a widely used technical standard for digital accessibility—currently the WCAG 2.1 AA level. While it varies case-to-case, we typically look for a 95 percent or higher level of conformance to the standard.
• Usability: Does the site work for a person with disabilities? People with disabilities will attempt to accomplish the core functions or activities of the site. Here, we focus on ensuring that all core use cases can be completed by a person with disabilities. For example, can anyone log in, review their recent transactions, pay a bill online, etc.?

If your system passes tests for both coding and usability, generally, we would tell you the system is compliant.

Process compliance means the policies, practices, and procedures of the organization to determine if accessibility compliance can be maintained on an ongoing basis. As part of the reasonable modifications requirements of the ADA, systems must able to maintain accessibility on an ongoing basis. We assess the compliance of the organization’s policies, practices and procedures by looking at the following items:

• Formal testing. Is there a formal testing schedule in place with a qualified third-party expert in digital accessibility?
• Monitoring. Is there a framework for monitoring the accessibility of the system in development and in production?
• Training. Has appropriate training on digital accessibility requirements been deployed at relevant portions of the development lifecycle?
• Tooling. Have appropriate tools been deployed and regularly used for validating accessibility in the development process?
• Implementer support. Is expert support being provided to the people who are implementing and maintaining the accessibility of the system?
• Policy. Is there a consistently structured and applied set of digital accessibility policies?
• Feedback. Is there a method of collecting feedback on digital accessibility issues?
• User support. Is there a method of supporting users with disabilities in their access of your site?

For banks not facing an immediate lawsuit, these two areas of compliance provide a framework for thinking about how they can improve their inclusivity over the long term.

Tim Springer is CEO of Level Access, which ABA endorses for digital accessibility solutions. For more information, please go to LevelAccess.com