If past behavior is a good predictor of the future, financial institutions should brace themselves: A new regulatory compliance shoe is about to fall, with a clear and present risk of litigation taking shape behind it. The focus is Web site accessibility – specifically, making Web sites and other digital platforms accessible to individuals with disabilities. The accessibility requirements and litigation threat won’t be coming from your not-always-friendly neighborhood, financial industry regulators; they will be coming from the even-less-friendly Department of Justice (DOJ) and from decidedly unfriendly plaintiff’s attorneys.
There are no Web accessibility regulations currently in place that are aimed clearly and specifically at financial institutions, but you don’t need a crystal ball or 20–20 vision to see them coming. A look at the history of the Americans with Disabilities Act (ADA) will tell you what you need to know.
When enacted in 1990, the law required local, state and federal governments to make their facilities accessible to those with disabilities. But it wasn’t long before that requirement extended to the private sector, as well. The Department of Justice (DOJ) interpreted the law to mean, and the courts agreed, that entities offering goods and services to the public had to make their facilities accessible, for example, by adding ramps and widening entrances to accommodate wheelchairs.
For financial institutions, ADA compliance meant not only making buildings accessible, but also modifying ATM kiosks to make them usable to the hearing and vision-impaired. Banks and credit unions resisted at first, arguing that the ADA didn’t really apply to them and that even if it did, compliance was too difficult and too costly. But a few law suits against high-profile targets, such as Bank of America, brought the industry pretty quickly into line.
Fast-forward a few years. The Internet was just taking shape when Congress enacted the ADA, so the statute doesn’t say anything about Web sites. But in 1996, the DOJ issued a legal opinion stating that “covered entities” were required to make their Internet communications accessible as well. In 2010, the DOJ announced that it would be developing regulations detailing the compliance requirements. After several delays, those rules are now scheduled for release in 2018.
Accessibility Litigation in the Air
That initial rulemaking will focus on government web sites, but in policy statements and law suits (against Target, Reebok, educational institutions and the National Basketball Association, among others), the DOJ has made clear its view that the web accessibility requirement applies to all “places of public accommodation,” which the DOJ has defined broadly to include any entity, public or private, that offers goods and services to the public. Banks and credit unions arguably meet that definition. The DOJ hasn’t issued regulations reflecting that interpretation and it hasn’t sued any financial institutions based on it …yet. But the department did intervene two years ago in a suit the National Federation of the Blind filed against H&R Block – which is getting pretty close to home.
Plaintiffs’ attorneys, for their part, aren’t waiting for the DOJ to issue rules specifically requiring private companies to make their Web sites accessible; in the past 18 months, they have initiated 61 law suits, mainly against retailers, claiming that inaccessible web sites violate the ADA. There are no banks or credit unions on that litigation list, but there have been anecdotal reports that some have received demand letters from attorneys for disabled consumers or advocacy groups representing them – a precursor to litigation or to a settlement that avoids it.
In the past three years, Bank of America has negotiated a series of “structured” settlement agreements (no litigation or threatened litigation involved) to address concerns about the accessibility of its Web sites. E*Trade and San Francisco Federal Credit Union signed similar structured settlement agreements this year committing to make their Web sites and mobile applications accessible to the visually impaired. Also of note: New York Governor Andrew Cuomo just announced that 12 banks have resolved discrimination complaints against them by agreeing to make their Web sites and ATM machines accessible to individuals with visual impairments. The American Bankers Association is sufficiently concerned about this trend that it has prepared a staff analysis of the ADA and the DOJ’s anticipated regulations addressing website accessibility.
Watching and Waiting – Not the Best Idea
Most financial institutions either haven’t registered Web accessibility as a concern, or have decided to wait until regulations make compliance mandatory for them and make the compliance requirements clear. This wasn’t a good strategy for dealing with ADA compliance 25 years ago, and it is not a good strategy for dealing with web accessibility today, for several reasons:
- You may be sued, and the litigation risks are high. Consumers who wanted to claim that a bank branch didn’t meet the ADA’s accessibility requirements had to actually visit the branch; consumers or advocacy groups that want to complain about inaccessible web sites need only click on the sites. Also worth noting: The ADA isn’t the only applicable statute. Many states also have accessibility laws and regulations, which may create a greater litigation risk.
- Your reputation will suffer. Litigation does not reflect well on a financial institution, to say the least. Voluntary compliance – “because we think it’s the right thing to do” ― works much better. Bank of America, for example, has developed a reputation for working cooperatively with advocacy groups and their attorneys to address Web accessibility issues, and has reaped a ton of favorable publicity as a result. Advocacy groups announcing negotiated agreements with the bank have consistently noted its “leadership role in providing accessible services to people with disabilities.”
- You will lose business. Disabled consumers who can’t navigate your Web site may not sue you, but they won’t do business with you, either. And there’s a lot of business at stake. Approximately 50 million Americans have a disability of some kind, and nearly half of them have a “severe” disability; an estimated 7 million of those between 16 and 75 are visually impaired and 37.5 million report some hearing loss. For 25 percent of seniors between 65 and 74, the hearing loss is “disabling.”
- Web accessibility requirements, when they come, via rulemaking (by the DOJ or bank regulators), litigation settlements or court decisions, may specify the accessibility standards you must meet, but there’s plenty of guidance available now. The DOJ has already indicated that its requirements will reflect the accessibility guidelines developed by the World Wide Web Consortium. You can read those guidelines today; you don’t have to wait for the DOJ to issue regulations referencing them.
These guidelines and others don’t tell you exactly what or how much financial institutions will be required to do to make their web sites (and their mobile banking applications) accessible. But they do identify the key features accessible Web sites must include and the major issues they must address.
There is no question that the design and programming required to revamp existing sites or build new ones will be costly. But meeting accessibility standards isn’t going to be any less costly, or any less necessary, in 2018 than it is today. And that process will be considerably more complicated and more expensive under the public scrutiny and deadline pressure created by a court order or regulatory directive.
Web accessibility is fast becoming a business imperative for financial institutions and it will almost certainly become a specific, unequivocally stated regulatory requirement for them as well. The only question is whether they will undertake the compliance effort proactively and voluntarily, or wait until regulations, litigation, or both give them no choice.