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Americans with Disabilities Act: Keeping Bank Websites and Mobile Applications Compliant

Recently, some banks have received demand letters from lawyers claiming that they have discriminated against customers (or potential customers) with disabilities by failing to provide websites or mobile applications that are accessible to individuals with disabilities.  A variety of businesses throughout the country have also faced lawsuits regarding accessibility.  The basis for these demand letters and lawsuits is generally Title III of the Americans with Disabilities Act (ADA) or state public accommodation laws. 


Title III of the ADA

Title III of the ADA prohibits any place of public accommodation from discriminating against individuals with disabilities in the full and equal enjoyment of the services of any place of public accommodation.  Banks are places of public accommodation, as are their websites and mobile applications generally.  A violation of Title III of the ADA could result in a court ordering a bank to make their website accessible, and ordering the bank to pay the plaintiff’s attorney’s fees and costs.  Many state public accommodation laws also provide for monetary damages, although not all state laws have clearly established that the laws cover websites and mobile applications as places of public accommodation.


What is Website and Mobile Application Accessibility?

An accessible website or mobile application is one that can be fully perceived, navigated, and interacted with by individuals with disabilities.  Often, individuals with disabilities use assistive technology to facilitate their interaction with websites.  For example, an individual who is blind might use a screen reader when navigating the web.  A screen reader rapidly reads all the content on the webpage to the user.  When an accessible website contains a picture, that picture contains an “alt tag” that briefly describes the content of the picture so the description can be read by screen readers.  Unless website designers keep accessibility in mind, websites are generally not going to be accessible to all customers with disabilities.


The Need for Website and Mobile Application Accessibility

An explicit obligation to provide accessible websites and mobile applications is not listed anywhere in Title III of the ADA or its corresponding regulations.  However, case law and consent decrees with government agencies have clarified that places of public accommodation, such as banks, have an obligation to ensure that customers can access their online services.  The practical need for accessibility is readily apparent given that rapid advances in banking technology have shifted more and more services online, making telephone and in-person banking less prevalent.  If a customer cannot access a bank’s website due to a customer’s disability, that customer might be deprived of the opportunity to access certain bank services altogether, a violation of Title III of the ADA.


The Current State of the Law

Back in 2016, the U.S. Department of Justice planned to enact regulations on website accessibility under Title III of the ADA.  Last year, however, the Department placed these regulations on hold indefinitely.  The lack of regulations has led to a hodgepodge of court decisions across the country regarding the obligation of places of public accommodation to provide accessible websites.  Courts have generally held that websites and mobile applications are places of public accommodation, particularly if they have a nexus to a physical location, such as a bank.   However, courts have not agreed on the precise technological standard for website and mobile application accessibility that banks must utilize.


WCAG 2.0 Level AA

While regulations and court decisions have not established clear standards for website accessibility, the Web Accessibility Initiative of the World Wide Web Consortium (W3C), an international community organization that develops web standards, has established a widely accepted standard for accessibility known at the Web Content Accessibility Guidelines (WCAG).  WCAG 2.0 includes Level A, AA, and AAA standards, with AA being the most commonly utilized standard for website accessibility.  Website developers that utilize WCAG 2.0 Level AA will generally be able to create a website that is accessible to most customers with disabilities.  However, website developers should be aware that WCAG 2.1 is now W3C’s official recommendation for website accessibility. However, as WCAG 2.1 is still an emerging standard, WCAG 2.0 Level AA will likely be sufficient for compliance at least for the near future. 


Steps for Creating Accessible Websites and Mobile Applications

Banks should develop a plan to make their websites and mobile applications accessible.  First, each bank should place a notice on its website and mobile application that individuals with disabilities who cannot access the website or application should contact the bank’s IT department or IT vendor.  It is imperative that this notice be accessible to individuals with disabilities.  If a bank is contacted by an individual with a disability, the bank should work to accommodate that individual’s specific needs.  Perhaps that person can use a telephone to access the necessary services, or perhaps the bank can make certain website or mobile application content accessible on an expedited timetable.  When a bank works in good faith to accommodate an individual with a disability, that individual is much less likely to file a lawsuit. 

Second, banks should develop a long-term plan to make their websites and mobile applications accessible to individuals with disabilities.  This will likely begin with an audit.  There is a variety of software that can provide banks with general information as to whether their websites or mobile applications are accessible, although this can be a time-consuming process for banks’ IT departments.  Instead, banks might wish to contract with outside accessibility auditors.  WCAG 2.0 Level AA should be used as the standard for any audit.  Once banks know how accessible (or how inaccessible) their websites and mobile applications are, the banks can begin the process of ensuring their websites and mobile applications are accessible.  Banks should prioritize accessibility issues, tackling the easiest accessibility issues first, such as font and contrast issues.  In some cases, it might be easier for banks to create new accessible websites and mobile applications from scratch, rather than fully revamp their existing ones to be accessible.  Therefore, when possible, banks should coordinate achieving accessibility with their regular website maintenance and redesign schedules. 

Finally, banks should keep accessibility issues in mind when contracting with vendors to provide websites and mobile applications.  Banks should strive to contract with vendors that are well-versed in website accessibility and consider requiring vendors to provide websites that meet WCAG 2.0 Level AA accessibility standards.  However, banks cannot shift their duty to comply with Title III of the ADA onto their vendors.  Responsibility for legal compliance remains with the banks, so banks need to exercise proper vendor management by monitoring and being diligent regarding their vendors’ compliance with Title III of the ADA.  While website accessibility is an evolving area of the law, with proper diligence banks can provide websites and mobile applications that are accessible to all their customers, including those with disabilities.

DISCLAIMER: The information provided is for general informational purposes only. This post is not updated to account for changes in the law and should not be considered tax or legal advice. This article is not intended to create an attorney-client relationship. You should consult with legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.

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