Banking industry feels the onslaught and needs to mitigate risk.
By Brian E. Cole II
Over the past year there has been a surge in the number of website disability access lawsuits being filed against businesses with consumer-facing websites in virtually every industry. The banking industry has been one of the industries hit the hardest, and these lawsuits are not going away any time soon. As such, it is important to understand the current requirements and law behind these lawsuits as well as the steps that can be taken to mitigate risk.
What Is a Website Disability Access Lawsuit?
Website disability access lawsuits (web access lawsuits) allege that a consumer-facing website is discriminatory because it contains certain barriers making it not accessible to individuals with a visual, auditory, or other disability. These web access lawsuits are being brought under Title III of the Americans with Disabilities Act as well as state non-discrimination laws such as California’s Unruh Civil Rights Act. The costs associated with these lawsuits can be significant both in defending and long-term remediation efforts to the website itself. Moreover, attorneys’ fees are recoverable under the ADA, and adding to the potential exposure is the minimum statutory penalties that are available under certain state non-discrimination laws, such as the Unruh Act.
The number of web access lawsuits is surging from approximately 60 federal lawsuits filed in 2015 to over 800 in 2017. The numbers for 2018 already exceed 1,000. These figures, however, represent only a portion of the companies actually dealing with or being threatened with these lawsuits. Indeed, many of these matters are never filed as lawsuits since companies may settle or resolve the matter after receiving a demand letter but before a complaint is filed. Further, in certain states like California, these matters will be filed in the state court to avoid uncertain case law at the federal level, while seeking minimum statutory damages through non-discrimination laws.
What Are the Current Website Disability Access Requirements?
Unfortunately, for banks looking to ensure a “compliant” website, the precise requirements remain unclear. In 2010, the U.S. Department of Justice in an Advanced Notice of Proposed Rulemaking announced that it would issue regulations on website accessibility standards for public accommodations’ websites. To date, however, the DOJ has not set forth its regulations, and at the end of 2017, the DOJ publically abandoned its rule making on website accessibility. While it remains unclear if and when the DOJ will issue regulations, the matter has gained the attention of the legislature and recently prompted a response from the DOJ. On June 20, a bi-partisan group of 103 members of the House of Representatives endorsed a letter to former Attorney General Jeff Sessions, urging the DOJ to publically state that a private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of a clear, final rule on website accessibility standards. Months later, members of the Senate endorsed a similar letter urging action by the DOJ. In a Sept. 25 letter, the DOJ responded to the first letter from the House of Representatives reiterating its interpretation that the ADA applies to public accommodations’ websites and that it is still evaluating whether regulations are appropriate and necessary. Significantly, the DOJ also stated that “noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
Despite precise regulations, many companies are looking to the website accessibility standards set forth by the Web Accessibility Initiative of the World Wide Web Consortium for guidance and benchmarking. In 2008, this international standards organization published version 2.0 of the Web Content Accessibility Guidelines, which is referred to as WCAG 2.0. These are not legal standards for public accommodations’ websites under the ADA or Unruh Act; however, it is the standard that the DOJ has used in settlements and the legal standard for certain federal agency and air carrier websites. WCAG 2.0 sets forth a series of specific success criteria as standards for an accessible website. WCAG 2.1 was recently published in June 2018 and adds 17 additional success criteria.
How Banks Can Protect Themselves
- Become familiar with the WCAG 2.0/2.1 standards, and determine if certain modifications to the website would improve accessibility for disabled individuals.
- Make accessibility modifications to the website, prioritizing those areas used most by customers or potential customers.
- Consider incorporating a website accessibility statement on the website and referring disabled individuals to alternate forms of communication (e.g., telephone number) to obtain the information on the website.
- If developing or updating a website, consider working with designers and vendors proficient with WCAG 2.0/2.1 and include such considerations in the scope of work.
- Consider engaging an accessibility expert to audit or perform testing on the website.
Brian E. Cole II has extensive experience defending California employers in employment litigation. He can be reached at email@example.com or (949) 622-1661.