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The New Class Action Lawsuit Threat: Website Accessibility
Tuesday, December 19, 2017 7:00 AM

You may have heard about the latest slew of class action lawsuits hitting California and several other states. Unfortunately, credit unions in the Cornerstone region are also beginning to receive demand letters from lawyers claiming that the credit union’s website violates the federal Americans with Disabilities Act (ADA). To date, credit unions have made their physical branches accessible, including ATMs; however, many credit unions have overlooked their websites.

Title III of the ADA requires places of public accommodation to provide equal access for persons with disabilities. The law does not specifically speak to websites nor do the current regulations interpreting the ADA. However, the Department of Justice (DOJ), the agency Congress charged with implementing the ADA, has interpreted the ADA to apply to websites. Under the Obama Administration, the DOJ had anticipated providing regulations to clarify website ADA compliance in 2018. However, we do not know when (or even “if”) the DOJ will address the issue considering the current administration’s push to slow down regulatory actions.

Absent a regulation on point, the best pieces of guidance include the Web Content Accessibility Guidelines 2.0 and the ADA Best Practices Tool Kit for State and Local Governments.

How do we determine if our website is compliant?
There are several companies that audit website compliance, and many online tools are available as well.

What does it mean to make a website ADA compliant?
More details are included in the links above, but here are a couple of examples:

  • Images Without Text Equivalents
    Blind people and individuals with low vision can use assistive technologies to access information displayed on a webpage. Examples include screen readers that speak the text on the screen and refreshable Braille display devices that translate text into Braille characters that can be read by touch. For images and graphics, a line of HTML code can be added to provide text.
  • Videos and Other Multimedia Lack Accessible Features
    A deaf person may not be able to hear the audio track of a video, while a blind person may hear the audio but may be unable to see the video images. A solution is to provide audio descriptions of images as well as text captions.

What should we do if we receive a demand letter from an attorney?
If the credit union receives a demand letter from an attorney, you should contact your local counsel prior to any communications with the sender. The credit union board will need to be apprised of the risk, as well as your bond company.

Where should we focus first when working on compliance?
The credit union should focus on its outward facing pages that are viewable by the general public; those present the biggest risk. We have found many of the complainants are not even members of the credit union—yes, we suspect class action lawsuit attorneys are setting up businesses with insincere “victims.” As a result, we suggest focusing on your website pages available to the general public. Once you have those pages compliant, look to your online banking pages where members log in, as well as your mobile sites or cell phone apps.

Can we just include on the website page, a statement that they may call the credit union for help accessing the information that may not be compliant/accessible?
According to existing ADA regulations, in some cases it might be acceptable for an organization to provide an alternative method of accommodating people with disabilities. However, the alternative would have to deliver an equal level of service. It may be cheaper to bring the website into compliance than to attempt to staff a 24-hour hotline.

Isn’t there a law addressing frivolous ADA lawsuits?
In some states, yes. Texas passed HB 1463 in 2017, which requires 60 days’ notice before a state claim can be filed, thereby providing the business a chance to cure the violation. However, this only applies to state court actions, and most of the lawsuits we are seeing are federal actions.

Oklahoma passed a similar bill in 2017, HB 1429, which requires a plaintiff to notify a defendant in writing 120 days prior to filing an ADA website accessibility claim in court. If the defendant corrects the website prior to the petition being filed, the court is ordered to dismiss the claim and award court costs and attorneys’ fees to the defendant. However, similar to Texas, this will not help in federal court actions.

Questions? Contact Suzanne Yashewski, SVP Regulatory compliance counsel, Cornerstone Credit Union League at syashewski@cornerstoneleague.coop or at 512-853-8516.