ADA Website Lawsuits – a Tale of Two Different Court Opinions

Differences in opinions will continue until Department of Justice provides clear website expectations.

Hand holding the word "compliance."

2/5/2019

Two recent court decisions provide notably different decisions on whether websites need to comply with ADA standards as places of public accommodations. 

Recently the U.S. District Court for the Southern District of Texas dismissed a case against the Houston-based Smart Financial Credit Union. This adds to the growing list of dismissed cases against credit unions across the country for alleged violations that their websites do not comply with ADA.

The court wrote: “While websites may be affiliated with brick-and-mortar businesses that are places of public accommodation, that does not render the businesses’ websites themselves places of public accommodation.”

But, in a different case in the United States Court of Appeals for the Ninth Circuit Court, the court took a different opinion with regards to Domino’s Pizza’s website and app. In this case the court wrote: “The panel stated that the ADA applies to the services of a public accommodation, not the services in a place of public accommodation. The panel stated that the website and app connected customers to goods and services of Domino’s physical restaurants.”

Two different courts, two different opinions. Clearly ADA website compliance issues are not going away anytime soon, and we will continue to see differing opinions until the Department of Justice provides clear website expectations.

Credit unions may wish to continue to review their websites and work toward meeting the standards of WCAG 2.0 aa or WCAG 2.1 aa as the best means of ensuring they are not the target of complaints or legal action.

One final note on the subject: It is estimated that 12 percent of Americans have some sort of disability.  Ensuring that they are able to fully enjoy the benefits credit unions offer to their members can make good business sense.

Question of the Week

What disclosures must the credit union make to members under ESIGN?

Before any electronic transaction takes place, the credit union member must first affirmatively consent (see section on “Consent” below) to conduct business electronically. Before providing consent, ESIGN requires the credit union provide a “clear and conspicuous” statement that informs the member of the following:

  • Any right or option to have the record provided or made available on paper or in non- electronic form, and the right of the member to withdraw the consent to have the record provided or made available in an electronic form, and any conditions, consequences, or fees in the event of such withdrawal;
  • Whether the consent applies only to the particular transaction that gave rise to the obligation to provide the record, or to identified categories of records that may be provided or made available during the course of the parties’ relationship;
  • The procedures the member must use to withdraw consent, and the information needed to contact the member electronically; and
  • How, after consent, the member may, upon request, obtain a paper copy of an electronic record, and whether any fee will be charged for such copy.

Consent

The member must consent electronically, or confirm his or her consent electronically, in a manner that “reasonably demonstrates” that he or she can access the information in the electronic form that will be used by the parties to conduct the transaction. Although not spelled out in the statute, one would assume that the member must first consent to receive records electronically, then consent to the actual contract. If so, this must be clearly explained to the member so that he or she understands the reason for consenting more than once.

Legal Briefs

National Credit Union Administration (NCUA)

The NCUA and other federal regulators issued the final rule amending their regulations regarding loans in areas having special flood hazards to implement the private flood insurance provisions of the Biggert-Waters Act. 

The NCUA issued a reminder about HMDA data collection requirements for calendar year 2019.

The NCUA issued a reminder about submission of 2018 HMDA data.

The NCUA issued a reminder about the CFPB’s asset-size threshold adjustments under HMDA and TILA.

Consumer Financial Protection Bureau (CFPB)

The CFPB released an updated version of the Reportable HMDA Data reference chart for data collected in 2019.

The CFPB posted four FAQs related to the TRID rule.

Office of Foreign Assets Control (OFAC)

OFAC has updated the SDN list as of Jan. 28. The last update prior to this was Jan. 27.

Questions? Contact the Compliance Hotline: 1.800.546.4465; compliance@nwcua.org.