Written by: André B. Cotten, Regulatory Compliance Counsel
Hello, compliance friends! The NAFCU Compliance Team has recently noticed an increase in questions related to potential Americans with Disabilities Act (ADA) website requirements. Credit unions are always eager to help their members, and we've had many credit unions asking about the status of ADA regulations, especially for websites. Today's blog post is meant to provide a very high-level overview of the statutory framework, rulemaking and enforcement activity, and potential for litigation with regard to ADA website compliance.
How the ADA Applies to Credit Unions
Generally, the ADA is intended "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities" and "to provide clear, strong, consistent enforceable standards" addressing such discrimination. See, 42 U.S.C. § 12101(b). The ADA is a complex, fact-specific area of law, and some states have their own statutes addressing similar issues, so consulting with counsel may be necessary to fully assess ADA legal issues and risks. One way the ADA applies to credit unions is through Title III of the Act, which sets standards for certain "public accommodations." Public accommodations include banks and other "service establishments," so these provisions have been interpreted to apply to credit unions. As a result, the ADA requires credit unions to meet standards for "newly constructed or altered places" and has wide-ranging implications that impact how to communicate with persons with disabilities, which ultimately impacts the issue of website accessibility.
ADA discrimination is broadly defined by five categories. The one most applicable to websites is a provision that prohibits excluding, denying services or treating members with disabilities differently because of a lack of "auxiliary aids and services." This generally involves accommodations for persons with vision and hearing related disabilities, providing aids and services like closed-captions, interpreters, Braille materials and similar tools.
There are exceptions such as if the credit union can show that offering services with auxiliary aids and services would fundamentally change the nature of the services, or providing an auxiliary aid would cause an "undue burden." However, these exceptions are generally interpreted narrowly. Overall, the definition of discrimination is highly technical and includes several legal terms of art that are somewhat clarified in the Department of Justice ADA regulations.
Possible Litigation Risk
ADA website accessibility can present some litigation risk for businesses that are public accommodations, including credit unions. One way a credit union can run afoul of the ADA is by not taking the steps in regulations that address when "auxiliary aids and services" may be necessary to meet objectives like effective communication with individuals with disabilities.
An important question in assessing the risk involved in these issues is what are the possible penalties and damages for ADA violations that may stem from litigation. The ADA permits the DOJ to assess civil penalties, which are currently up to $75,000 for the first ADA violation, and up to $150,000 for additional violations. The ADA and its regulations do not authorize statutory penalties for plaintiffs. However, a court can force a business to meet accessibility standards as part of a private lawsuit and award plaintiffs their attorney's fees, costs and expenses in a suit. Additionally, litigation risk can stem from state statutes. Overall, the rise in litigation is a continuing trend that is in part influenced by the DOJ's previous rulemaking and enforcement activity.
Rulemaking Efforts and Enforcement
In 2010, the DOJ issued an advanced notice of proposed rulemaking (ANPR) aimed at starting the process for adopting formal standards for website accessibility. While acknowledging that neither the Act nor existing regulations "specifically address access to websites," the DOJ indicated its position that the ADA is broad enough to apply to websites.
After collecting information in 2010, the DOJ did not take further rulemaking action that would impose a clear standard for credit unions to follow with regard to website accessibility for persons with disabilities.
In regards to enforcement actions, during the Obama Administration, the DOJ intervened in private lawsuits on the issue of website accessibility, taking the same position set forth in the 2010 ANPR, which is the ADA is broad enough to apply to the websites of public accommodations like credit unions.
For example, on May 31, 2011, the DOJ entered into a settlement agreement with Wells Fargo, indicating that discrimination includes the failure to "provid[e] a website that is accessible to individuals with disabilities, including blind individuals who use screen readers to access web content that is visual and providing captions for deaf individuals . . ." While Wells Fargo committed to making its website more accessible as part of the settlement, the DOJ did not require specific standards to be followed.
In later cases, such as a consent decree with H&R Block in 2014, the DOJ went a bit further than in the Wells Fargo case and actually required H&R Block to commit to following a specific standard in making its website accessible that is known as the Web Content Accessibility Guidelines 2.0 Level A and AA. These are voluntary standards with a dozen separate components. The DOJ also required H&R Block to make not only its website accessible, but its mobile applications as well. Despite not adopting a formal website accessibility standard, the DOJ continued to require this standard in its enforcement actions.
Currently, the Title III rulemaking has been listed as "inactive" on the DOJ's most recent rulemaking agenda. It also appears that formalizing this rule is not a priority for the Trump administration, and it is unclear how the current administration will address these issues from an enforcement perspective. However, the risk for credit unions from private litigations remains active.
Conclusion
Moving forward, a credit union may need to consult with its local counsel to discuss the trends in jurisdictions where it operates relating to potential demand letters and lawsuit activities. Some credit unions may also consider adopting accessibility measures based on the potential litigation and reputation risks. There are also consultants that work to make websites accessible for persons with disabilities and perform ongoing work for changes in content over time which comes with various upfront and continuing expenses.
For further information, please see the March 2017 Monitor Compliance Article written by the VP of Regulatory Compliance, Brandy Bruyere.
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