Banks of all sizes nationwide are receiving demand letters from plaintiffs’ law firms on behalf of visually impaired customers alleging inability to access Internet banking websites in violation of the Americans with Disabilities Act (ADA). The letters demand that the banks modify the websites to comply with proposed rules that won’t be enacted until 2018 and, of course, the firms are seeking attorneys’ fees.
According to Kevin LaCroix’s blog, “The D&O Diary,” website accessibility lawsuits “have become big business” for a number of plaintiffs’ law firms. Two of the leading law firms distributing these letters are Carlson Lynch Sweet & Kilpela LLP (Pittsburgh) and Lee Litigation Group PLLC (New York).1 According to one source, 106 lawsuits have been filed in federal court in the past year and a half.2
We expect that the number of suits will increase. In one month alone, we received notice from more than 10 banks in our program that received demand letters alleging that a bank’s website and Internet-based banking services violate the ADA because the sites are inaccessible to visually impaired individuals. These letters appear to be targeting banks of all sizes in all states; although, Pennsylvania, New York and California are the top three states with the most lawsuits.1 The letters tend to demand that the banks make costly modifications to comply with proposed standards.
Even though the standards are proposed to be implemented in 2018, courts have held that websites that are not accessible to the visually impaired violate the ADA.
What’s the issue?
As the Internet has evolved, so have websites, simplifying to be more visually appealing and sophisticated in what is offered online. For example, with the movement to mobile and tablet devices, many websites are moving in the direction of utilizing more imagery then text and unfortunately, with these design changes, being left on the outskirts of utility are the visually impaired who rely on screen readers or other adaptive technology for reading what is presented on a web page. If there is no text tagged or associated to an image or picture, the screen reader essentially skips over it; hence the viewer, your current or prospective customer, may be missing vital information…like the button to log into their accounts or a link to important instructions or descriptions of products you offer.
The World Wide Web Consortium, the “international community that develops open standards to ensure the long-term growth of the Web,” has published Web Content Accessibility Guidelines for making websites accessible to people with visual impairments. The guidelines call for using invisible text as an alternative to graphics and for making pages navigable by a keyboard (not just by a mouse), among other features.3 By doing so, this makes a site more accessible. The text will be invisible to sighted users (i.e. white text on white background) but the adaptive technology will have no problems reading the text.4
What’s the customer’s perspective?
Consider this quote from a visually impaired customer: “If I find a site I can use then I use it as much as possible; often even if I know I might be able to get things cheaper elsewhere. For example, I find it easier to have my supermarket shopping delivered and the best site I found to use is -------, so I use it. I know some things would be cheaper elsewhere but, well, the accessibility of the site and the app make it so easy why would I bother to look elsewhere when my experience tells me I’m likely to find problems.”5
So while modifications may be expensive, the costs may pay off with customer use and satisfaction.
What to do?
Even though regulations are not expected to be released until 2018, courts can still find that a website violates the ADA. We recommend that you seek legal counsel who is familiar with these issues, including appropriate modifications and local lobbying efforts. We do not recommend responding to a demand letter in the absence of experienced counsel.
Many, if not most of the state bankers associations, are familiar with these demand letters and the efforts to respond. Even if your bank has legal or IT advisors to help guide you through the ADA accessibility process, it may be helpful to check with your state bankers association to see how other banks are responding. The few associations that we talked with were able to recommend resources in your state.
A 2010 ABA report summarized it best: “…the ADA may appear to be just one more compliance burden and expense. However, unlike many other compliance obligations, there is much to be gained from making the world more accessible to the disabled. Not only is it the right thing to do, it is also potentially good for business as it expands the market for bank products and services to the broadest range of customers. ABA urges all banks to undertake their continuing review of ADA compliance with this in mind.”
Helpful Guide From ada.gov (ada.gov/websites2.htm)
- When navigation links are used, people who use a screen reader must listen to all the links before proceeding. A skip navigation link provides a way to bypass the row of navigation links by jumping to the start of the web page content.
- All images and graphics need to have an alt tag or long description.
- Use alt tags for image maps and for graphics associated with the image map so that a person using a screen reader will have access to the links and information.
- Some photos and images contain content that cannot be described with the limited text of an alt tag. Using a long description tag provides a way to have as much text as necessary to explain the image so it is accessible to a person using a screen reader but not visible on the web page.
- Text links do not require any additional information or description if the text clearly indicates what the link is supposed to do. Links such as “click here” may confuse a user.
- When tables with header and row identifiers are used to display information or data, the header and row information should be associated with each data cell by using HTML so a person using a screen reader can understand the information.
- A link with contact information provides a way for users to request accessible services or to make suggestions.
1. “Wave of ADA Website Accessibility Lawsuits Grows, Community Bankers Threatened,” The D&O Diary, Kevin LaCroix, dandodiary.com/2016/10/articles/employment-practices-liability-2/wave-ada-website-accessibility-lawsuits-grows-community-bankers-threatened/
2. “Federal Website Lawsuits Top 100 As New Wave Of Demand Letters Hits Community Banks,” Minh Vu, adatitleiii.com/2016/09/federal-website-lawsuits-top-100-as-new-wave-of-demand-letters-hits-community-banks/
3. “Bad for Users, Bad for Business,” T.C. Kelly, freeadvice.com/news/Government+Law/websites-that-are-bad-for-business-and-customers.htm
4. “Retailers often blind to discrimination and lost business” Paul Harpur, phys.org/news/2014-11-retailers-discrimination-lost-business.html
5. “Seventy Percent of Websites Are Breaking the Law on Accessibility-Here’s How and Why That Needs to Change,” Damiano La Rocca, huffingtonpost.co.uk/damiano-la-rocca/website-accessibility_b_9931304.html