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As previously reported in one of our Alerts, hundreds of community banks have received demand letters from plaintiffs’ firms representing disabled persons and advocacy groups for the disabled alleging insufficient accessibility of websites and mobile applications (together, digital platforms).

The letters asserted that banks are required to adopt an international protocol (Web Content Accessibility Guidelines, version 2.0 AA or WCAG 2.0 AA) to redesign their websites at considerable cost.  However, the provisions of Title III of the Americans with Disabilities Act (ADA) – which cover “public accommodations,” including banks – do not specify that this protocol is applicable, and the U.S. Department of Justice (DOJ) has not yet issued a final rule articulating an accessibility standard. The letters often demanded exorbitant attorney and related fees from community banks. More recently, credit unions have been hit by a wave of pre-lawsuit and litigation activity during the fall of 2017.

Since the advent of the Trump Administration, DOJ enforcement actions under Title III of the ADA concerning digital platform accessibility for the disabled have been on the wane.  DOJ is also reassessing its prior ADA rulemaking activities.  As part of that review, on December 26, 2017, the DOJ withdrew its advance notice of proposed rulemaking for Title III of the ADA (originally issued in 2010), indicating that it is “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.”  Unfortunately, this action leaves the banking industry and other companies without a clear accessibility standard and no likely prospect for a Title III rulemaking in the foreseeable future, which will continue to make ADA compliance challenging.  However, there have been other encouraging developments in late 2017 and early 2018:

  • On November 20, 2017, the Independent Community Bankers of America (ICBA) announced an agreement with Access Now, an advocacy group for the visually impaired, to stop sending demand letters to community banks for alleged violations of the ADA. Under the ICBA and Access Now settlement, the ICBA will adopt and distribute to its members a “Restatement of Voluntary Access Principles” demonstrating its ongoing commitment to provide accessibility to visually-impaired individuals.  In exchange, Access Now will release ICBA member banks – as well as banks eligible for membership with assets of $50 billion or less – from all claims related to the provision of electronic banking services and the ADA.  However, this settlement affects only one advocacy group, so individual and class action litigation will likely remain a risk for banks.
  • As part of its legislative advocacy efforts during 2017, AABD has sought legislation at the federal level and supported bills at the state level to freeze ADA accessibility lawsuits until DOJ can adopt a final rule defining a clear accessibility standard. We believe banks and other companies need clarity concerning the steps they must take to meet accessibility requirements for the disabled, as well as a reasonable time within which to comply with the rule.  Toward that end, AABD has written to the House Financial Services Committee, the Senate Banking Committee, and the DOJ requesting their support for such legislation, and the DOJ responded to AABD’s letter.  AABD intends to continue this dialogue during 2018.

ADA digital platform compliance remains a fluid issue, and litigation and reputational risks will likely remain threats.  So in the absence of a clear accessibility standard by DOJ, what should your institution do?

First, there appears to be a consensus (based on previous DOJ enforcement actions) that the WCAG 2.0 AA standard will likely become the accessibility standard over time, so that standard would seem to be an appropriate starting point for your bank’s ADA digital platform accessibility program.  Using that standard, it is important to audit your bank’s website and mobile applications to determine whether any accessibility deficiencies exist and develop a corrective action plan to fix them.

It is also critical to immediately post an “Accessibility Statement” on your bank’s website offering assistance to, and seeking feedback from, disabled individuals on how to improve accessibility.  The home page should link the user to the Accessibility Statement, and both should be programmed so that those pages are made accessible to the blind and visually impaired.

Your bank should also develop accessibility policies and procedures designed to comply with the ADA, and designate appropriate staff to ensure ongoing accessibility of digital platforms to the disabled.  If your bank utilizes mobile applications, those should also be covered in your accessibility review and program.

Lori Sommerfield, Senior Counsel, Buckley Sandler

David Baris, President, AABD