Mitigate Risks as ADA Suits Mount
The number of credit unions hit with lawsuits in recent weeks over the accessibility of their websites continued to climb into double digits, and experts warned that even more credit unions could become targets if they don't get up to speed on the issue.
The suits center around claims that credit unions’ websites violated the Americans with Disabilities Act, which prohibits discrimination on the basis of disability for equal enjoyment of goods, services, facilities, privileges, advantages or accommodations in places of public accommodation. The Department of Justice's ADA website states that discrimination includes failing to modify policies, practices or procedures to make things accessible, unless doing so would create an undue burden.
According to the lawsuits, that discrimination includes failing to do things such as embed code that allows screen readers to vocalize descriptions of graphics on websites. Without those efforts, visually impaired users can't determine what's on a credit union's site and in turn can't browse a site, look for locations, learn about amenities or determine which branch to visit. The complaints also claimed the credit unions’ sites contained redundant links that created repetition for screen readers and were missing form labels.
Bruce Pearson, who is an attorney and senior partner at Styskal, Wiese and Melchione in Glendale, Calif., said the suits are insulting in a way because they accuse credit unions of turning a cold shoulder on members with different abilities.
“I haven't experienced a credit union management team yet that isn't sensitive to the needs of its disabled members. And I don't know of a credit union team that wouldn't do backflips to accommodate the needs of a legitimately disabled credit union member. If the phone rings and the member says, ‘I can't access home banking,’ I’ve known of clients that’ll send someone out to help them if that's what it takes. They’ll take care of their members,” he said.
The trouble may actually be due to a lack of clarity about what rules to follow. The Department of Justice, which enforces the ADA, has not finalized regulations about how ADA-compliant websites should work.
“So, we have essentially a high level of confusion that the government's giving us where the DOJ says, ‘Yes, websites have to be compliant,’ but they’ve never really given us a formula for compliance,” Pearson explained. Court interpretations have been inconsistent, he added.
What credit unions and other organizations do have, however, are technical standards called Web Content Accessibility Guidelines. The World Wide Web Consortium (W3C), which is administered via a joint agreement among the Massachusetts Institute of Technology, the European Research Consortium for Informatics and Mathematics, Japan's Keio University and China's Beihang University, developed the standards.
Spencer Pryce, President of the Vermont-based Level 9, which specializes in building credit union websites, said one version of the WCAG — WCAG 2.0 AA — is the most popular. “The industry opinion is that will be the definition,” he said.
Getting a site up to WCAG 2.0 AA standards isn't always fast or easy, though, warned Martin Orlick, an attorney and partner at Jeffer Mangels Butler and Mitchell in San Francisco.
“For financial institutions like credit unions, it's going to be a major task. It's going to be at least six figures to first do a gap analysis to find out where your website diverges from WCAG 2.0 AA, and then once you get that, you’ve got to train people to understand — these are your website developers, both in-house and out-of-house — to be aware of and know how to make a website compliant not just on day one, but on a continuing basis,” he said.
Many credit unions may turn to their contracts with third-party web developers for answers.
“Look at the reps and warranties that were given by the developer,” Orlick advised. “If there is a provision in there that says, ‘We’re delivering a website that complies with the law in general or complies with the accessibility requirements under the ADA,’ then yes, absolutely, raise that flag as high as you can.”
Developer contracts rarely promise a website will be ADA compliant, though, according to Orlick and Pryce. Regulatory uncertainty over what “ADA compliant” means is one reason; site management by credit union employees is another.
Even though a developer may build a site, credit union employees are often the ones adding the content, Pryce explained.
“A lot of the issues that exist on sites are not necessarily the software, not necessarily the construction of your site, but the content that's within it that the content administrators within the credit unions are creating,” he said.
Uploading PDFs that aren't formatted for accessibility or that have images can create issues, for example. “If the content administrator doesn't know when to use the alt-tag, when not to use an alt-tag, then they will inevitably create accessibility issues within the site,” he noted as another example.
Credit unions that want to avoid becoming targets of ADA suits can do a few things, according to the pros.
Test your website now. “We encourage our clients to download software that users with disabilities might be using, try the site, see what the experience is,” Pryce advised. Several scanning tools are also available, some free, that flag accessibility issues, he said. “Some of those issues will be false-positives, some of those issues will be legitimate,” he warned.
Fix it. See where your site falls short of WCAG 2.0 AA and address the gaps, Orlick noted. Employee training is key as well, Pryce added. “These content administrators, the marketing department, the content authors within the credit unions, whoever they are, they have to know this stuff,” he said. “You have to understand what [ADA compliance is] about and you have to consider it in kind of every aspect of your online presence moving forward — everything that you author.”
When it's time for a new web-developer contract, be sure the language addresses ADA compliance expectations, Orlick added.
Use your legal team. “Realize that your secrets are only safe with an attorney,” Orlick said. Rethink having the credit union's head of IT hire a web developer or consultant to check the site, he said. “Hiring that web developer would not necessarily be protected from discovery, because it was done by the head of IT. However, if the litigation counsel would hire that independent consultant to assist the lawyer in understanding the complexities of the website and advising the client, then you have work-product protection over that report and you have the attorney-client privileges in discussions with the lawyer and the client.”
Think big picture. Evaluate your entire online operation, and don't forget about third-party websites embedded on your site, Orlick noted. The problem could surface anywhere, Pryce added.
“What about bill pay? What about online banking? What about the e-statements?” he asked. “Right now all of the publicity is about websites, but this will extend much further than that.”