January 3, 2018
As Americans become ever more reliant upon the Internet to obtain information and perform everyday tasks, companies' websites are increasingly being scrutinized to determine whether they are accessible to people with disabilities. This scrutiny has significant legal and financial implications, as an increasing number of lawsuits are being filed challenging website accessibility under the Americans with Disabilities Act (ADA).
Banks and other financial institutions, always a favorite target of plaintiffs’ firms, are in the crosshairs. ADA lawsuits are not a new development for many banks, as over the last couple of decades (the ADA was established in 1990) suits have been brought challenging accessibility due to physical barriers and limitations related to ATM machines. Unfortunately, many banks and financial institutions have left themselves vulnerable to the significant costs and potential monetary and equitable damages associated with ADA website accessibility litigation.
The Legal Standard (or Lack Thereof)
In general, the standard mandated by the ADA is that individuals with a disability must receive “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”
Plaintiffs’ lawyers are attempting to push the boundaries of the law’s definition of “public accommodation” with their current focus on website accessibility - and they’re doing so with a great deal of success, which poses increasing danger for banks. Bank of America settled one of the first web-accessibility lawsuits in 2000, and Charles Schwab followed suit shortly thereafter. The number of lawsuits alleging lack of website accessibility has grown in recent years. Since the beginning of 2015, more than 700 businesses of all types across the country have been sued in federal court over website accessibility.
The lawsuits allege that individuals with disabilities are being denied access to goods and services because of allegedly inaccessible websites. The problem for banks, and all businesses facing the threat of litigation, is that the federal government has failed to develop promised clear guidelines on the issue of what constitutes accessibility. The ADA was passed before the Internet was a consumer tool, which has left the ADA's application to websites largely open to varying interpretations. While the Obama administration promised regulation in this area, it did not follow through, and there is no sign of any clarification coming from the Trump administration. New regulations were scheduled to be released in 2018, but the Department of Justice recently placed the issue on its “non-active” list, leaving the law’s interpretation up to the courts.
Discerning a clear standard from the courts is also a challenge, as most of the lawsuits that have been brought have settled before a verdict has been reached. In 2017, in the case of Juan Carlos Gil v. Winn-Dixie Stores Inc., a U.S. District Court in Miami reached a rare verdict that held the supermarket chain was obligated to provide an accessible website to a legally blind plaintiff under the Americans with Disabilities Act. The court stated in its ruling that: “Where a website is heavily integrated with physical store locations and operates as a gateway to the physical store location,” it is likely that the ADA applies.
In light of the lack of rulemaking about ADA applicability and standards related to websites, courts and companies generally look to the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), published by the Web Accessibility Initiative of the World Wide Web Consortium, for guidance. This standard has been relied upon by companies, courts, and has been incorporated into Department of Justice settlements. WCAG 2.0 seeks to ensure that people with disabilities can access online information by providing coding guidelines to assist web developers in crafting accessible websites.
What Steps Should Banks Take to Protect Themselves?
Put simply, a bank or financial institution should evaluate the accessibility of its website by assessing whether a user with disabilities can actually accomplish what they set out to do on the website. The usability of a website requires an analysis of the look and feel of the website, as well as all the functions available to consumers, from checking an account balance to downloading a form to communicating with a company representative. The most effective way to go about this process is to consult with experienced legal counsel and website accessibility consultants as part of an audit process.
Banks should also be evaluating the accessibility of their mobile apps. While plaintiffs’ lawyers have been focused on website accessibility, it’s only a matter of time before mobile apps receive similar scrutiny.
With all of the money at stake in ADA website compliance litigation (from legal fees, court-ordered cures, settlements and verdicts), banks should seriously consider making the business decision to bring their websites up to WCAG 2.0 standards. The cost of compliance at the front end is always exponentially less expensive than addressing issues after a Plaintiff's lawyer has a target in their sights.