Pub. 6 2017 Issue 2

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 18 Emerging Issues More and more companies, including banks like yours, are receiving demand letters from plaintiffs’ attorneys alleging noncompliance with Title III of the Americans with Disabilities Act (ADA) because people with visual or hearing disabilities aren’t able to access their websites. While the Department of Justice (DOJ) has not issued website guidelines and has no plans to do so until 2018, it has indicated that providing accessible technology is an “already existing obligation,” and compliance is expected unless an organization can show undue burden to do so. Given the speed in which technology is evolving, the challenge becomes how and when changes to your website need to take place in order to ensure compliance. Background In July of 1996, the ADA Act was signed into law, prohibiting the discrimination against people with disabilities. It guarantees equal opportunity for those with disabilities in public accommodations, employment, transportation, state and local government services and telecommunications. Banks fall into the “public accommodations” category, and therefore must provide “auxiliary aids and services” to disabled customers. In 2010, the DOJ revised the standards for Title II and Title III of the ADA. These revised standards were referred to as the 2010 ADA Standards for Accessible design, commonly known as the “2010 Standards.” The standards required businesses, banks included, to make changes to their business policies and procedures as necessary to serve customers with disabilities, including taking steps to communicate effectively with them. While most of the revisions focused on physical accessibility like ramps and doorways, changes to ATMs were also required to aid those with disabilities. In this same year, the DOJ indicated additional regulations under Titles II and III would be introduced that would require websites to be ADA accessible and compliant. Web Content Accessibility Guidelines 2.0 To date, the DOJ has not released specific regulations for website accessibility and compliance. As an alternative, various banking associations have recommended using the Web Content Accessibility Guidelines 2.0 (WCAG 2.0), created by the Worldwide Web Consortium. The WCAG 2.0 guidelines are used by web developers and explain how to make web content accessible to people with disabilities. Level AA has twelve guidelines organized under four principles: • Perceivable • Operable • Understandable • Robust The full set of guidelines can be found by visiting their website and includes such principles as making it easy for users to see and hear content, creating copy alternatives for images, making all website functionality accessible from a keyboard and providing alternatives for multimedia. Don’t Become a Target In addition to adopting the WCAG 2.0 guidelines, there are many things you can do to reduce your bank’s risk of being found non- compliant. These include: • Regularly assess websites for accessibility. There are experts who can look at and audit websites to determine if there is content presented in a way that is non-compliant. • Appoint someone in the bank who will oversee website accessibility issues and monitor and evaluate new technology • Provide training so the bank staff is aware of and understands potential changes to the standards. • Make it easy for customers who have accessibility questions or issues to find a resolution or report issues. • Work with vendors who understand accessibility issues and require accessibility knowledge in their contracts. Demand Letter What should you do if your bank receives a demand letter from a plaintiff’s attorney regarding your website? • Don’t ignore it. Given the increase in demand letters community banks are receiving, the likelihood of litigation is more about when than if. • Seek legal counsel. Banks should have legal counsel in place prior to receiving a demand letter. It’s best to let counsel communicate with the plaintiff’s attorney. • Train the appropriate staff at the bank on how to respond to questions. Banks should create talking points or provide background information so front-line staff are prepared for questions. DON’T WAIT: WEBSITE REQUIREMENTS UNDER THE ADA By Daniel R. Ryan – Assistant Vice President, Financial Services Claims OneBeacon Financial Services