Pub. 6 2017 Issue 1

l e a d i n g a d v o c a t e f o r t h e b a n k i n g i n d u s t r y i n k a n s a s 6 T HE AMERICANS WITH Disability Act (ADA) was signed into law in 1990 to ensure equal access to goods and services for persons with disabilities. At that time, the internet was in its early stages and wasn’t used by banks and other businesses to market goods and services. As a result, not a lot of attention was given to the inability of disabled persons to access websites. It wasn’t until 2010 that the Department of Justice (DOJ) issued a notice that it intended to amend the ADA regulations to establish requirements to make websites accessible. But then they didn’t. And they haven’t. Rules or regulations setting forth actual standards for compliance with the ADA with regard to websites are not expected until 2018. However, two years ago H&R Block was sued under the ADA, claiming that the company’s tax return product on its website and mobile app were not accessible for persons with disabilities. The case was brought by two individuals in the U.S. District Court of Massachusetts, and the court ordered H&R Block to pay damages of $22,500 to the individuals, and a civil penalty of $55,000 to the DOJ, stating that H&R Block failed to provide all individuals with the same opportunity for the use and enjoyment of their products and services. The standard set by this court was that H&R Block was required to ensure compliance with Web Content Accessibility Guidelines (WCAG) 2.0 and 2.0 Level AA. The WCAG provides information to companies so that their mobile apps and websites are compatible with the ADA. Several cases in other jurisdictions have also adopted the WCAG guidelines as a standard for website accessibility. This fall, we learned that Kansas banks have been receiving demand letters from an entity on behalf of people who are visually impaired, alleging ADA website accommodation violations. Here is what we know: the demand letters are to be taken seriously. Kansas banks were not the first targets, as realtors, retail stores, and other businesses all across the nation have been receiving demand letters with varying outcomes. Some have tried to litigate (with no luck thus far), and some have settled. Others have had success in contacting their vendor to become compliant with these guidelines, and then engaging an attorney to respond to the claimant that the website is being worked on and it is expected to be completed by a certain time in the future. As we continue to receive calls from members about this issue, we believe it would be wise to determine whether the bank’s website and mobile app are accessible under these guidelines. The KBA sent out a memo in late September telling members how you can test your websites for accessibility. Call our office if you need help. If you receive such a demand letter, please contact your attorney immediately. The real frustration for your bank, as well as for the KBA in representing your interests, is that had there been standards in place by the DOJ, we know you would have ensured that your websites complied. This tactic seems to be a “cart before the horse” method of forcing compliance with a general accessibility requirement before there are official rules in place and that is an unfair way of doing business. TAKING WEBSITE ACCESSIBILITY SERIOUSLY By Kathy Taylor, SVP & General Counsel, Kansas Bankers Association