ADA accessibility litigation is on the rise against financial institutions and other companies. Is your bank or credit union website at risk?
Your website makes a positive impression on your audience with a professional design, intuitive functionality and valuable content. It may also expose your financial institution to litigation if it’s not fully accessible to people with disabilities.
Federal accessibility laws outlined in the Americans with Disabilities Act historically pertain to wheelchair ramps, doors that open automatically and other features related to brick and mortar spaces. But since 2000, courts throughout the country have ruled that accessibility laws also pertain to a company’s website and have held companies financially liable for difficulties that disabled visitors experience online. Websites that don’t provide proper access to information for deaf or blind visitors, for instance, fall into this category.
“Websites in many ways are becoming the next frontier for ADA litigation,” said Brian G. Muse, a Virginia-based attorney at LeClairRyan who specializes in defending companies against ADA-related lawsuits. “For the past 10 years, we’ve seen an explosion of these lawsuits. Plaintiffs’ attorneys are entitled to recover attorneys’ fees in these cases, so it’s very lucrative for lawyers.”
He added, “This is absolutely something that companies should be concerned about, and they should be proactive about addressing it.”
Web Content Accessibility Guidelines
The ADA applies to banks, credit unions and other private-sector businesses. If you’ve heard of Section 508 compliance, this section is part of a federal law (Rehabilitation Act of 1973) that was updated in 1998 to require government agencies to make their websites and other electronic information accessible to disabled people. Section 508 does not directly impact private companies.
How does a bank or credit union create a fully accessible website? The World Wide Web Consortium (W3C) produces the widely accepted Web Content Accessibility Guidelines (WCAG) that speak to the proper way information should be presented. The guidelines are now in their second version after an update in 2008 and cover four main principles: Perceivable, Operable, Understandable and Robust.
Here’s a sampling of those guidelines from the WCAG 2.0:
- Offer a text alternative for every non-text element so it can be changed to large print, braille, speech, symbols or a simpler language
- Provide alternatives for audio-only and video-only media, including captions and audio descriptions
- Make it easier for users to see and hear content, including separating foreground from background
- Make all functionality available from a keyboard
- Provide users enough time to read and use content
- Avoid designing content in a way that is known to cause seizures. Web pages should not flash more than three times in any one-second period.
- Provide ways to help users navigate, find content and determine where they are
- Make content readable and understandable through different mechanisms
- Make website pages appear and operate in predictable ways
- Help users avoid and correct mistakes
- Maximize compatibility with current and future technologies, including assistive technologies
The Price of ADA Non-Compliance
ADA compliance is a serious matter that, if unaddressed, exposes your financial institution to litigation and bad publicity. And it doesn’t take a large effort to identify offending websites. Accessibility lawsuits stem from a frustrated user who partnered with a disability rights advocacy group and attorneys to bring the case.
When an accessibility complaint is made against a company’s brick-and-mortar location, there’s a “future use” legal standard the plaintiff must meet. That means you can’t file an accessibility complaint unless you can prove that you will regularly use that facility in the future, which restricts the pool of potential litigants to a local area.
But there’s no geographic restriction with the internet. A plaintiff using your website in another state could file a lawsuit in that jurisdiction and “you could end up defending that lawsuit very far from your business,” Muse said, further driving up the cost of litigation.
The major lawsuit regarding website accessibility is National Federation of the Blind v. Target Corporation (2006), a California-based class action lawsuit in which Target paid $6 million to settle claims that its website did not appropriately provide blind people access on its retail website, in violation of the ADA. Target also was ordered to pay $3.7 million in attorneys’ fees and costs to the class of plaintiffs.
The list of website accessibility lawsuits grows every year. In 2012, brokerage firm Charles Schwab and video-streaming service Netflix both settled cases rooted in accessibility claims from blind people. But courts disagree about the ADA and whether the law extends to a website or applies only to a brick and mortar location. Netflix, for example, settled the case in Massachusetts but prevailed last year in a California case after the judge ruled based on the brick and mortar logic.
“The law is very unsettled, as we can see from the two different Netflix decisions,” Muse said.
Banks have been defendants in website accessibility lawsuits since 2000 when Bank of America agreed to improve its user experience for blind people as part of a settlement that also included a commitment to installing talking ATMs. Since then, other accessibility claims have been settled by Fleet Bank, Washington Mutual, Sovereign Bank, First Union, Bank One, HSBC and credit reporting agencies Experian, Equifax and TransUnion, among many large corporations in various industries.
“I don’t want to sound like an alarmist, but the point is you need to pay attention to accessibility and perhaps modify your site,” Muse said. “You do that by getting legal advice from qualified attorneys and by getting technical assistance from industry professionals that can provide proper assistance on achieving compliance.”