Compliance Check for Financial Institutions: Is Your Website ‘Accessible' to those with Disabilities?

ABSTRACT: Due to a recent spike in ADA filings pertaining to businesses' websites, all financial institutions should work with their counsel and web designers to ensure that their websites and mobile applications follow current accessibility guidelines.

What do Amazon, Domino’s, and Beyoncé have in common? Their websites have all have been the subject of high profile lawsuits alleging failure to comply with the Americans with Disabilities Act of 1990 (the “ADA”). Your financial institution could be, too, if it has not taken measures to ensure its website is ADA compliant.

We most often associate the ADA with physical limitations of brick and mortar buildings. But in recent years, several courts have extended the protections of the ADA to customers using websites in times where we conduct most of our business online. The relevant portion of the ADA provides that “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.” 42 U.S.C. §12182(a). Even though the ADA has not been amended to specifically address websites, several courts have held that the ADA applies to website accessibility, whether by nexus to a physical location or by the website’s public nature.

There is currently a split among the circuits as to whether or not a website falls under the scope of the ADA, but recent cases show a tilt in favor of holding that websites are either places of public accommodation in their own right, or have a sufficient nexus to services provided out of a brick and mortar location to fall under the ADA. In one of the more recent cases, the Ninth Circuit Court of Appeals held that an ADA lawsuit could proceed against Domino’s for alleged failure to comply with appropriate accessibility standards for its website. The Court reasoned, “The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.” Domino’s had not established that compliance would be an undue burden or would materially alter its business, such that the ADA claim was permissible.

While ADA website litigation is not altogether new, it has gained traction in the past couple of years. Financial Services Litigators are closely monitoring these cases across the country and expect these filings against banks and credit unions to increase, due to increasing popularity of, and reliance upon, online banking by customers. Financial institutions are encouraged to ensure their websites comply with the current industry standard for accessibility, as well as state-level requirements. In evaluating its website, a financial institution should ask these questions:

• Is the website “perceivable”? Does it:
  • Provide text alternatives for non-text content
  • Provide captions and other alternatives for multimedia
  • Create content that can be presented in different ways
  • including by assistive technologies, without losing meaning
  •  Make it easier for users to see and hear content

• Is the website “operable”? Does it:
  • Make all functionality available from a keyboard
  • Give users enough time to read and use content
  • Avoid content that causes seizures
  • Help users navigate and find content

• Is the website “Understandable”? Does it:
  • Make text readable and understandable
  • Make content appear and operate in predictable ways
  • Help users avoid and correct mistakes

• Is the website “Robust”? Does it:
  • Maximize compatibility with current and future user tools.

The Eighth and Tenth Circuits have not yet issued rulings applicable to this topic. We will continue to monitor for new cases and provide updates.