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Client Alert

ADA website claims are coming

February 08, 2016

Several years ago, the U.S. Department of Justice (DOJ) updated its regulations interpreting the Americans with Disabilities Act (ADA) as it applies to ATM machines. Among other things, banks were forced to retrofit their ATMs or buy new ones so that each bank location has at least one ATM that is handicap accessible. The class of people that have to be accommodated include those who are visually impaired. What followed was a spate of claims and lawsuits against banks that were not in compliance with the new ATM rules.

Look out, because it’s starting to happen again. A law firm in Pittsburgh that specializes in ADA litigation has begun to threaten places of public accommodation (including banks, as well as various types of retail businesses), this time claiming that websites have to accommodate visually impaired individuals, primarily by enabling non-text content to be converted to text so that visually impaired individuals can use voice-activated software to read the text to them. Recently, several lawsuits have been filed by the Pittsburgh law firm asserting these claims.

The first bank to fall victim to this new claim was Huntington National Bank (Huntington), which was sued in the Federal District Court for the Western District of Pennsylvania in August 2015 by a blind individual purportedly representing a class of plaintiffs. The complaint alleges that Huntington offers retail banking services to the public through its website, including such features as looking up account balances, transferring funds, paying bills and ordering checks, and that visually impaired individuals confront access barriers to the site that must be removed under the ADA.

What is different this time is that the DOJ has not yet issued regulations addressing websites. It has announced that proposed regulations will be forthcoming this spring, followed by a period of time to allow comments by businesses that are impacted. Only after that process has run its course will final regulations be issued. In the case of ATMs, regulations had been issued by the DOJ with a deadline set well in advance to allow banks time to comply, and as far as we are aware, the claims against banks only began to proliferate after the deadline passed. In fact, Huntington has moved to dismiss the case against it precisely on the grounds that it is premature until the DOJ completes the rule-making process and issues final regulations. That motion is currently pending before the court.

Banks should be aware of the storm clouds that are gathering. The key point is that the DOJ believes that websites must be accessible by visually impaired people, and the ADA plaintiffs lawyers are beginning to pounce on the issue. It is not likely to go away. Banks should begin to prepare for the possibility that their websites may need to be upgraded. The first step is to learn how visually impaired individuals use their computers and the Internet, and to find out what your website service provider knows about the subject and plans to do about it.



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