Long awaited Guidelines from the federal Department of Justice (DOJ) for website accessibility under the Americans with Disabilities Act (ADA) are now expected sometime in 2018. But, as discussed below, that does not mean that financial institutions transacting business with the public through websites and mobile applications should ignore web-based accessibility entirely until 2018. Law firms and the DOJ are attempting to enforce the ADA on website owners in the absence of mandatory regulatory guidelines.
The ADA and public accommodation
By way of background, the ADA requires that “places of public accommodation” be accessible to the disabled. Most financial institutions operating some form of physical facility open to the public understand their obligations to make those physical facilities accessible. Public accommodations are generally businesses that are open to the public and fall into one of 12 categories listed in the ADA, including “service establishments” which includes banking and financial institutions. Disabled persons can sue under the ADA alleging that they were denied full and equal access to the goods and services at a “place of public accommodation.” The DOJ also can bring suit for alleged ADA violations. There is a set of very specific and largely objective criteria for accessibility of physical locations.
Is your website or “app” a place of public accommodation?
This brings us to websites and mobile applications. Beginning in 2006, private litigants and the DOJ began filing or threatening to file legal action based on allegedly inaccessible websites (and eventually also including mobile applications). The law is unsettled as to whether websites and mobile applications are “places of public accommodation” under the ADA. Some courts have held that they are, and others have ruled otherwise. Some courts apply the ADA only to websites that have a connection to goods and services available at a physical location, like a retail store. The theory is that the store is a place of public accommodation, and “shopping there” online requires accessibility of the website. Other courts apply the ADA more broadly to include all websites that offer direct sale of goods or services, even those that lack “some connection to physical space.” Since web-based businesses can be sued anywhere they are regularly transacting business, litigants can select their forum based on which has the most favorable law.
Mobile banking websites and mobile applications are a way that a bank transacts its services with its customers. The argument would be that it is possible to fully enjoy the services offered by the bank without having access to the mobile banking website and mobile applications.
If the website or app is a place of public accommodation, what has to be done to make it accessible?
There are no current laws or regulations which define what is required. There are voluntary guidelines developed by W3C, an international consortium that develops web standards. The most recent version is the Web Content Accessibility Guidelines (WCAG) 2.0. Even within WCAG 2.0, there are degrees of accessibility: A, AA, and AAA. The lack of formal rules on accessibility has not stopped private litigants and their lawyers and the DOJ from attempting to enforce the ADA against businesses transacting business through websites and mobile applications. The DOJ has been insisting (without any statutory or regulatory basis) that websites and mobile applications be brought into compliance with WCAG 2.0 AA.
At the most basic level, an accessible website would have these (and other) accessible elements:
- Provides text alternatives for any non-text content;
- Provides alternatives for time-based media;
- Includes content that can be presented in different ways without losing information or structure;
- Is easy to see and hear, including separating foreground from background;
- Permits all functionality from a keyboard (as opposed to a cursor);
- Permits sufficient time to read and use content;
- Is not designed in a way that is known to cause seizures;
- Includes ways to help users navigate, find content, and determine where they are;
- Includes text content that is readable and understandable;
- Operates and appears in predictable ways;
- Helps users avoid and correct mistakes; and
- Is compatible with current and future user agents, including assistive web technologies.
What should businesses do?
Law firms representing private litigants have become increasingly aggressive in recent months in pursuing online accessibility. A typical approach involves a letter from a law firm asserting that the website or app is not accessible and offering to discuss an “agreed plan” for bringing the website into compliance. The threat typically also insists on payment of significant attorney’s fees and sometimes alleged damages as terms to settle. Even more importantly, businesses are potentially missing out on e-commerce with disabled customers who are unable to navigate their websites or mobile applications. Bottom line: You would be wise to evaluate the costs and potential benefits of incorporating website accessibility designs sooner rather than later, especially if a website or mobile application revamp is in your near-term business plans.