As has been reported in the news recently, there is increasing litigation asserting that the websites of some commercial enterprises, including financial institutions, are not accessible to consumers with disabilities. The Americans with Disabilities Act was adopted before widespread adoption of the internet, but the Department of Justice and many courts have taken the position that the ADA’s prohibition of discrimination against anyone on the basis of disability in the use of “accommodations of any place of public accommodation” applies to websites as well as physical establishments.
The legal landscape is uneven because most cases are settled before an opinion is rendered, there is a lack of consensus among the courts that have considered the issue, and the Department of Justice indicated at the end of 2015 that it will now delay its publication of a Notice of Proposed Rulemaking addressing the issue until 2018. That’s eight years after the DOJ issued its Advance Notice of Proposed Rulemaking promising to address web site accessibility and public accommodations pursuant to the ADA. We believe the announced delay will result in even more private litigation due to the lack of guidelines from the DOJ and the sense that plaintiffs should “make hay while there’s sunshine.” In the meantime, the settlements the DOJ has entered into indicate that compliance with Web Content Accessibility Guidelines 2.0, Level AA (https://www.interactiveaccessibility.com/services/wcag-20-compliance) would serve as a safe harbor against enforcement action.
Of course, any financial institution that receives a demand letter regarding the limited accessibility of their website should immediately seek legal counsel. But, if an ounce of prevention is worth a pound of cure, any financial institutions that interact with the public through their websites should assess their accessibility with an expert in the matter, or at a minimum, with its IT managers to determine whether changes can be made to reduce the threat of litigation or an enforcement action.