Alert: ADA Website Accessibility Claims Spread to Northwest

As ADA website compliance demand letters appear in the Northwest, here are some proactive steps credit unions can take.

11/21/17

In recent days, credit unions in the Northwest have been receiving demand letters from a California-based law firm stating that the credit unions’ websites violate the Americans with Disabilities Act (ADA).

The ADA regulations are designed to ensure that content on business websites is fully accessible to people with disabilities.

In response to the recent demand letters, Farleigh Wada Witt has shared an alert with advice for credit unions about responding to the legal claims, and ensuring their websites meet the requirements.

Alert for Credit Unions: ADA Website Accessibility Claims – Steps Credit Unions Should Take to Avoid and Respond to ADA Legal Claims

Picture of a gavel striking a surface.The uncertain regulatory landscape caused by the Department of Justice’s (DOJ) failure to adopt website accessibility standards for visually-impaired individuals has created the latest opportunity for profiteering by plaintiff’s attorneys. While retailers, restaurants and hotels have been the target of these lawsuits for the last few years, these law firms are now turning their attention to the target-rich environment of financial institutions.

Nine Virginia credit unions were recently sued for alleged violations of the ADA arising from their websites, and several Oregon credit unions received demand letters threatening suit within the last week. Here is what you need to know to protect your credit union from these claims, and to respond to any demand.

What is ADA Website Accessibility? Title III of the ADA prohibits discrimination against disabled individuals in a place of public accommodation. Financial institutions, including credit unions, are considered places of public accommodation for purposes of ADA Title III. (That is why credit unions must comply with ADA regulations governing ATM accessibility and branch accessibility.) When a place of public accommodation has a website, and there is a “nexus” between the website and the goods and services offered in the physical location, courts have held that the website must also comply with Title III. Plaintiffs argue that there is a nexus between the credit union’s website and the goods and services offered in its physical locations because the website provides information about those goods and services and about the credit union’s locations. In addition, most credit unions offer the capability to conduct or initiate many transactions and access accounts and services online.

Places of public accommodation must offer auxiliary aids to allow individuals with disabilities to effectively communicate. However, the DOJ has not issued detailed requirements for website compliance in the same manner that it has with ATMs and branch offices. Plaintiffs claim that websites must be compatible with screen readers commonly used by individuals with visual impairments. More specifically, they claim that all websites must comply with the Web Content Accessibility Guidelines of the Web Accessibility Initiative of the World Wide Web Consortium, known as WCAG 2.0 AA. While credit unions may need to take steps to ensure website access for the visually-impaired, compliance with WCAG 2.0 AA is not a regulatory standard. Rather these are guidelines that plaintiffs, advocates, and some courts have looked to for guidance in the absence of DOJ regulations. A quick reference guide to satisfying the WCAG 2.0 standards can be viewed here.

Steps to Avoid ADA Website Accessibility Claims. Making your credit union’s website, online banking, and online application functions compliant with WCAG 2.0 AA is the best way to avoid an expensive and inconvenient lawsuit. However, making your credit union’s entire web presence WCAG 2.0 compatible in the immediate future may not be financially or logistically feasible. We recommend that credit unions focus first on their online banking and loan and deposit application environments. A credit union should contact the application service provider for those functions and request confirmation regarding WCAG 2.0 AA compliance. If the particular application is not currently compliant, the credit union should demand the service provider’s plans for compliance. Ultimately the credit union should take the same measures regarding its main site. There are intermediate steps you can take, such as including a phone number where visually-impaired members can receive assistance, placing that phone number in a banner or other prominent place and making it readable by screen readers.

Finally, engaging experts to evaluate the accessibility of the credit union’s online environments is an additional important step to making the technical changes necessary to avoid a potential claim.

ADA Website Accessibility Legal Demands. Attorneys asserting these claims often start by sending the credit union a letter claiming that the attorney’s client (often not identified by name), who is visually impaired, tried unsuccessfully to access the credit union website. The letter then states that the client, and a class of similarly-situated individuals, are now entitled to damages and indicates a suit will promptly be filed, but invites the credit union to contact the attorneys to discuss resolution.

Responding to an ADA Legal Demand. If your credit union receives an ADA website accessibility demand, you should not simply ignore it, hoping that the claimant will go away. These attorneys have demonstrated time and again that they will file class action lawsuits. Rather, you should take immediate action.

  • First, contact an attorney knowledgeable about these issues. The first thing that attorney should do is tender the demand to the credit union’s insurer. Not all credit unions have insurance coverage for these claims, but some do. Your attorney should then obtain more information from the claimant and prepare a response. The typical ADA demand letters do not contain the information necessary to fully-evaluate the claim. For example, without the name of the alleged claimant, the credit union cannot determine if the individual is a member, or even within the credit union’s field of membership. Additionally, it is important to determine what the individual was trying to accomplish – was the individual seeking general information on the main site, or attempting to complete an online banking transaction?
  • Second, contact the service providers hosting the credit union’s main site and the online banking site and ask them to provide information about accessibility for individually-impaired individuals.
  • We strongly recommend that you not respond to such demands without legal review and assistance. There are simply too many legal land mines that you can step in, and too many advantages that can be lost when making a response without first engaging in a careful legal strategy analysis.

ADA website claims can have a real adverse financial impact. Those risks can be managed with key prevention steps.

The attorneys at Farleigh Wada Witt are experienced and knowledgeable about ADA accessibility requirements and are prepared to both assist you in evaluating your ADA compliance issues and options, and defend your credit union against any legal demands. If you have questions or need more information, please call attorneys Hal Scoggins or Kim McGair.

Farleigh Wada Witt Attorneys for ADA Guidance

Kim McGair’s practice emphasizes a wide range of litigation matters including employment, commercial litigation, commercial collections, personal injury defense, and real estate litigation. She is an advocate for her clients and provides them with sensible advice and strong representation to protect their interests and help them achieve their objectives as efficiently as possible. Contact Kim at 503.228.6044 or kmcgair@fwwlaw.com.

Hal Scoggins has been providing legal advice to credit unions since 1991, focusing on state and federal regulatory compliance, deposit and lending operations, contract and business matters, corporate governance, CUSOs, and all other aspects of financial service delivery. He frequently conducts seminars on legal matters for the Northwest Credit Union Association, Credit Union National Association councils, local chapters, and other trade groups. Contact Hal at 503.228.6044 or hscoggins@fwwlaw.com.

For credit unions seeking help updating their websites to meet the new ADA compliance requirements, NWCUA’s Strategic Link partner, CU Solutions Group, offers ADA compliance preparation services. Click here to learn more.