LEGAL


Letters Questioning ADA Website Accessibility Reemerge By Keith Thornburg, Vice President and General Counsel


They’re baaaack!!! It’s not a poltergeist, but the ADA website accessibility ghosts are making noises again.


In 2016, a wave of demand letters was sent to businesses nationwide, including banks, alleging their websites were not accessible to individuals with visual, auditory or other physical disabilities. Te letters asserted the businesses were exposed to legal claims under the Americans with Disabilities Act and sought negotiations and settlement to resolve the alleged deficiencies.


Missouri banks have recently reported receiving letters from a law firm representing a Florida-based nonprofit advocacy corporation stating the banks’ websites were not ADA compliant. A recent banking journal article noted nearly 260 ADA website accessibility cases were filed in 2016, and there could be 2,600 cases filed in 2021 (https://bankingjournal.aba. com/2021/04/the-current-state-of-ada-digital-enforcement).


State of the Law Enacted in 1990, the ADA pre-dates digital services. Te federal courts of appeal are split on whether websites present “places of public accommodation” and are subject to ADA requirements and sanctions. A three-judge panel in the 11th U.S. Circuit Court of Appeals recently ruled websites and mobile apps are not “public accommodations.” Te panel found that the ADA is unambiguous and clear, describing 12 types of public accommodations that are all tangible, physical spaces (Gil v. Winn-Dixie Stores Inc., 11th Circuit, USCA Case: 17-1347). A footnote states the decision in the 11th Circuit aligns with decisions in the 3rd, 6th and 9th Circuits, but the 1st and 7th Circuits have disagreed. Tis split could provide a basis for the U.S. Supreme Court to someday decide the question.


Te U.S. Department of Justice has not issued private sector website accessibility standards. Defendants in some private cases have pointed to the lack of DOJ approved standards as a defense against ADA website claims, asserting there is no requirement to act until DOJ issues a standard. Te DOJ has


issued standards for government websites, which are addressed under a different law.


Business and trade groups, including the American Bankers Association, have urged Congress to act to clarify and update the ADA and for DOJ to establish standards, subsequent to such congressional direction.


Best Practices Information technology vendors are familiar with website accessibility standards developed by the World Wide Web Consortium (W3C). Te standards are periodically updated, and DOJ has indicated if it were to issue standards, the WCAG standard (currently WCAG 2.1, w3.org/WAI/ standards-guidelines/wcag/glance) would weigh heavily.


Many website development vendors offer “free” screening assessment tools to test and score website accessibility. Te screening tools are a marketing hook. If your bank considers a review of its website and mobile banking platform, follow your normal diligence in contracting. Some plaintiff law firms that make demands related to website accessibility may use screening programs to make initial assessments of websites. Tese screening programs may not produce complete or reliable results.


In any event, banks are continually investing and updating their online and mobile platforms. Your internal staff and/or contract vendors should be aware of the WCAG standards and implement them as you update your site.


If your bank is targeted with a letter of inquiry by a law firm vaguely describing purported problems with your website and offering its assistance, consider disregarding the letter. If your bank is targeted with a letter from a law firm that presents a client’s demand on your bank, refer the letter to your attorney who can evaluate the law firm presenting the claim, the purported plaintiff and their litigation history. From there, your bank and your attorney can determine a response, if any, as well as the need to review and consider improvements to your bank’s website and mobile banking platform.


THE MISSOURI BANKER 9


Page 1  |  Page 2  |  Page 3  |  Page 4  |  Page 5  |  Page 6  |  Page 7  |  Page 8  |  Page 9  |  Page 10  |  Page 11  |  Page 12  |  Page 13  |  Page 14  |  Page 15  |  Page 16  |  Page 17  |  Page 18  |  Page 19  |  Page 20  |  Page 21  |  Page 22  |  Page 23  |  Page 24  |  Page 25  |  Page 26  |  Page 27  |  Page 28  |  Page 29  |  Page 30  |  Page 31  |  Page 32