The years-long wave of lawsuitsover credit union website accessibility may have flattened out in2019, but some credit unions may have work to do in 2020 if theywant to avoid the undertow of what is still a strong current ofrisk, two industry attorneys warned.

The wave started in 2017 when plaintiffs across the countrybegan filing dozens of lawsuits against credit unions. Those suitsessentially contended that the credit unions' websites didn'tcomply with the Americans with Disabilities Act because theyallegedly lacked certain pieces of code or features forvisually-impaired users. Most cases settled, but courts alsodismissed several suits after a relativehandful of credit unions chose to fight the allegations.

Relatively speaking, things have been quieter since thosedecisions began rolling in during 2018 and 2019.

JosephLynett

"We aren't seeing new website accessibility cases filed againstcredit unions," said attorney Joseph Lynett, whose firm JacksonLewis represented some of the credit unions involved in the suits."That's not to say that it can't happen. Certainly in theenvironment that we're in with these website accessibility cases,almost anything could happen."

However, a key factor in the success some credit unions have hadin court is that, generally speaking, the plaintiffs weren'tmembers and weren't part of the credit unions' fields ofmembership. In turn, some judges said, those plaintiffs had no standing to sue.

The tables could turn, though, if an existing member decides tosue a credit union that hasn't made its website accessible.

It's possible that one or two lawsuits could surface, "becausepresumably there are blind members of the thousands of creditunions that are out there," Lynett explained.

JohnBredehoft

"If our credit unions start getting sued by people who aremembers of the credit union, we're not going to have thatget-out-of-jail-free card," added attorney John Bredehoft, whosefirm Kaufman & Canoles also represented several creditunions.

There are three things that might help credit unions stay out oftrouble in 2020, however, according to Lynett and Bredehoft.

1. Keep focusing on online accessibility.

The lawsuits may have dwindled, but credit union websiteaccessibility is still a priority. The ADA prohibits discriminationon the basis of disability for equal enjoyment of goods, services,facilities, privileges, advantages or accommodations in publicplaces, and at least one court – the Ninth Circuit Court of Appeals– has indicated that certain types of websites must indeed complywith the ADA, Bredehoft noted.

It's essentially the law now in the western states covered bythe Ninth Circuit, according to Bredehoft. "California by itself isa big chunk of change," he added. "The Ninth Circuit doesn't governanything outside of the Ninth Circuit, but it's a fairly prominentcourt, and people will be inclined to follow it or to try harder todistinguish it."

Credit unions, even if they don't do business in the westernU.S., should take heed, Lynett also warned.

"So in the Ninth Circuit, and really almost everywhere in thecountry now, I think, the days of challenging whether websites arerequired to be accessible under Title III of the ADA – the days ofmaking that argument that they're not – I thinkare past us," he said.

The problem remains, however, that there's no official list ofwhat exactly makes a website accessible, he noted. For many,compliance for now means conforming to a particular set of privatestandards, such as the World Wide Web Consortium's Web ContentAccessibility Guidelines (WCAG).

"What I've been urging and advising clients to do – and theyhave almost uniformly done it – is to make sure that the websitesare accessible to meet the WCAG 2.0 AA standards," Bredehoft said."They're not all that hard. And the few thousand dollars it takesto do that is much cheaper than getting a lawyer even to negotiatea settlement."

"Really the WCAG is the de facto standard," Lynett added. "Itmay not be a regulatory standard, but it does seem to be the defacto standard. It seems to be the accessibility standard that mostcompanies and web consultants refer to when improving websiteaccessibility."

2. Scrutinize your mobile app.

So far, much of the discussion about credit unions' digitalaccessibility has focused on websites, but credit unions also needto think about the accessibility of their mobile apps in 2020.

Part of the issue, Bredehoft noted, is that even the WCAGstandards themselves aren't worded in a way that reflects themodern realities of mobile apps.

"For example, one of their guidelines says, 'Make allfunctionality available from a keyboard.' And you really can't dothat on a phone app," he explained. "So if we see additional suits,they'll be filed by people who are trying to order it over our appor over the phone, because we haven't and can't implement the WCAGstandards on a phone app. And we'll be seeing it by members who aretrying to access us over the phone. Now, if a credit union has anaccessible webpage and information on the phone app in giant blackletters on white contrast saying, 'If you have problems, call us,'do I think that's a violation of the ADA? No, I don't. But that'sjust me."

The accessibility of credit union kiosks and other self-servicedigital offerings are also things to consider, Lynett added.

"Technology in its own inimitable way has always moved fasterthan the law can catch up with it," he said, adding, "As technologyevolves, we're going to just have the evolution of these claims. Weprobably will see more mobile app claims."

Accessibility is something to consider during the design stage,Lynett noted. "I think it's probably a good idea to bake into thatprocess accessibility as well, because the easiest time to addressaccessibility is when you're actually creating the technology," hesaid.

3. Stay calm.

Though the threat of litigation still exists for creditunions, 2020 may be relatively more manageable than previousyears.

"I would say out of all the things that you worry about andshould worry about as a leader of a federal credit union, thisshould probably not be on the top 10 list, frankly," Lynett said."It's something that should be on the list because credit unionsrely on technology to better serve their members, but I don't knowthat it should keep the leader of a federal credit union up atnight."

Of course, one reason more credit union leaders may be sleepingbetter is that their credit unions' websites are more accessiblethan they were even a year ago.

"It's not that the credit unions didn't want them to beaccessible, it's just that this was not on anyone's radar,"Bredehoft said. "The cases have put it on the radar. And I thinknow if somebody sued, 99.9% of my clients could say, 'We'reaccessible.'"