Anyone who has owned or managed a business knows that the Americans with Disabilities Act (ADA) requires that public spaces be accessible to individuals with disabilities. And many bankers will remember the class action litigation surrounding ATM accessibility several years ago. Now a new wave of litigation is targeting banks and other businesses over the accessibility of their websites. Led by the same law firm that spearheaded the ATM accessibility litigation (Carlson Lynch Sweet & Kilpela), lawyers are sending letters to banks demanding that they make their websites more accessible and pay attorneys’ fees. This post sets out best practices for making your bank’s website ADA compliant and provides tips on what to do if you receive a demand letter from a lawyer.
Best Practices for ADA Compliance
The Department of Justice (DOJ) and the courts have determined that the ADA’s accessibility requirements apply to websites. Unlike other areas of ADA compliance, the DOJ has not yet implemented website accessibility standards, although they are expected to release website standards in 2018. But the absence of DOJ standards does not excuse compliance with the ADA and has not stopped plaintiff attorneys from sending demand letters and filing lawsuits.
Without specific standards, the DOJ (and the courts) look to the Web Content Accessibility Guidelines (WCAG 2.0) to provide a baseline for website accessibility. The WSAG 2.0 includes four categories of compliance:
- Perceivable: Information and user interface components must be presentable to users in ways they can perceive. This includes things like text descriptions for images and accessible audio and video media (e.g., captions and text alternatives for videos).
- Operable: User interface components and navigation must be operable. For example, the website must be navigable by keyboard only.
- Understandable: Information and the operation of user interface must be understandable. This means error messages should be understandable, abbreviations should be explained, and site navigation should be clear and easy to follow.
- Robust: Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technology. This requires the use of tags and codes that are universal and can be read by most browsers and accessibility software.
The complete WCAG 2.0 guidelines are available here.
Banks should talk to their website designers to ensure that their websites comply with these guidelines. It may also be worth consulting an ADA compliance expert to avoid the headache of litigation down the road.
Responding to a Demand Letter
The Carlson Lynch law firm has sent hundreds of demand letters to businesses across the country, including many community banks. The letters appear to be identical, other than the portion identifying purported problems with the particular company’s website. A sample letter (which was publicly filed in a lawsuit between the Carlson Lynch firm and a recipient of one of its letters) is available here.
The demand letter proposes that the recipient make changes to its website and take other steps to ensure ADA compliance. The letter also includes a proposed settlement agreement that calls for payment of attorneys’ fees to the Carlson Lynch firm. The letter states:
Before you incur significant cost by engaging outside experts of your own, we invite you to first contact us directly to explore a far more cost-effective and pragmatic approach to resolving these issues.
In other words, the Carlson Lynch firm is imploring banks and other businesses to pay money to the firm instead of consulting your own attorney or any ADA compliance expert. If you receive this demand letter, you should take it seriously and consult your own attorney to determine how to proceed.