Accessibility to Bank Services for Customers with Disabilities
Title III of the Americans with Disabilities Act (ADA) requires places of "public accommodation" to allow people full and equal enjoyment of business services, regardless of disability. Banks are places of public accommodation and as a result must comply with Title III of the ADA. The ADA requires more than simply providing customers physical access to a building. Recently, plaintiffs' law firms and disability advocacy groups have been filing lawsuits against places of public accommodation for failing to provide websites and mobile applications that are accessible to customers with disabilities.
Customers with disabilities frequently need websites and mobile applications to comply with certain technological standards in order for these customers to use websites and mobile applications effectively. For example, videos must to be captioned properly for customers with hearing impairments, and pictures must have "alt tags" that describe the pictures with text in order to allow screen reader devices to describe the pictures for customers with visual impairments.
The State of the Law Regarding Website Accessibility
The Department of Justice (DOJ) has begun the process of creating regulations on website accessibility under the ADA. The DOJ issued an Advance Notice of Proposed Rulemaking in 2010 and gathered extensive commentary related to website accessibility under both Title II (which covers public entities such as state and local governments) and Title III of the ADA. The DOJ has decided to first issue website accessibility regulations under Title II of the ADA, and then issue regulations under Title III. The DOJ recently solicited additional comments regarding website accessibility under Title II. The comment period ended Oct. 7, 2016, and thus it is likely that website accessibility regulations under Title II will not be available until 2017 at the earliest. The Title II regulations for website accessibility will likely impact the eventual Title III regulations that will apply to banks. The DOJ has stated that proposed website accessibility regulations under Title III are not expected until 2018.
The lack of federal regulations regarding website accessibility for disabled individuals has not stopped lawsuits from being filed. Under existing Title III regulations, a place of public accommodation must "furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities," including communication through the internet. Case law on website accessibility has indicated that places of public accommodation can be liable under the ADA when their websites are not accessible to people with disabilities. A bank's website connects users to the bank's physical locations, and thus the bank's website would likely be considered a place of public accommodation given its strong nexus to the bank's physical locations. To meet obligations under the ADA, banks must incorporate technology to ensure its websites and mobile applications are accessible to customers with disabilities.
Technological Standards for Web Content Accessibility
Web Content Accessibility Guidelines (WCAG 2.0) have been developed to make web content more accessible to people with disabilities. The DOJ often requires companies to comply with WCAG 2.0 in settlement and consent agreements. Therefore, a bank whose website and mobile applications comply with WCAG 2.0 has likely met its website accessibility obligations under the ADA. WCAG 2.0 is also one of the standards that the DOJ has considered using as a basis for eventual federal regulations.
WCAG 2.0 requires, among other things, perceivable content that provides text alternatives for non-text content and provides captions for multimedia. It also requires websites to make all functionality available from merely a keyboard. These guidelines also require websites to have easily readable text and tools that help users correct website accessibility errors. WCAG 2.0 also maximizes compatibility with current and future user tools. For more information on WCAG 2.0 see www.w3.org/WAI/intro/wcag.php.
Steps for Compliance with the ADA
Every bank should conduct an audit of its websites and mobile applications. WCAG 2.0 should be utilized as a clear standard for ADA compliance. Compliance audits may be conducted by third-party vendors or internally by the bank. However, internal audits will take significant employee time and may not be feasible for banks with small information technology departments.
Next, banks should work with the third-party vendors that administer the bank's websites and mobile applications. Banks should consider requiring current and future vendors to comply with WCAG 2.0 and should exercise proper management by monitoring vendor compliance with the ADA. If a website is not accessible, the bank is liable, not the vendors. Banks should be aware of this liability when negotiating vendor contracts and should select vendors who are capable of providing compliant websites and mobile applications. With proper diligence, banks can ensure that all of their customers, including those with disabilities, have equal access to the bank's websites and mobile applications.
Mirus and Goodman are Attorneys with Boardman & Clark, LLP, a WBA Gold Associate Member.