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Check with management.  Plaintiffs’ counsel are scouring banks’ websites to find purported violations affecting visually impaired customers and mailing out demand letters.

Banks are beginning to receive demand letters from law firms that assert that banks are violating the American with Disabilities Act (ADA) by not having websites that provide access to customers with disabilities.

Not to panic, but pay attention and ask questions of your management.

The demand letters rely heavily on DOJ rules proposed in 2010 but never finalized! Those proposed rules referred to the applicability of a protocol for website ADA compliance known as Web Content Accessibility Guidelines version 2.0 AA criteria (“WCAG 2.0 AA”).

They also rely on a reading of Title III of ADA which requires “public accommodations” to provide accessible facilities and take steps to communicate effectively with customers with disabilities. Title III requires public accommodations (which includes banks) to provide without charge “appropriate auxiliary aids and services” to assure “effective” communication with individuals with a speech, hearing or vision disability. Auxiliary aids and services are required only if doing so does not impose an “undue burden.”

This is an evolving process. Some banks have taken steps to comply with the protocol in anticipation that the rules that DOJ may finally adopt will include a requirement to meet the protocol. DOJ’s delay in finalizing its rules has resulted in many parties deciding to wait to meet the protocol in its entirety (while taking other measures to conform to Title III) until such time that the rules are finalized. The final rules, assuming they ultimately become final, might not require conformance to the protocol or might impose another requirement.

It is also possible that the Department of Justice may try to enter into consent decrees with banks even without the rules being finalized.

In March 2014, the DOJ and H&R Block entered into a consent decree in which H&R Block agreed to make its website, mobile applications and tax preparation tool comply with WCAG 2.0 AA. The DOJ’s consent decree with H&R Block appears to clearly adopt the WCAG 2.0 AA as the standard for making websites and mobile applications accessible to persons with disabilities and ADA-compliant. However, there is no legally binding technical standard that defines an “accessible” website at present.

For more information, please call David Baris, President of AABD, at 202-463-4888 on steps your bank can take to mitigate the risk of any litigation and how the bank may wish to respond to demand letters.