Website Accessibility: Proactive Steps to Avoid ADA Claims

Plaintiffs’ law firms have recently been sending demand letters to banks of all sizes alleging that their websites violate the Americans with Disabilities Act (ADA), particularly with regard to accessibility of the websites to persons with visual impairments. The letters are accompanied by a proposed settlement agreement that would require the bank to undertake remedial measures and, of course, to pay the law firm’s fees and costs. The proposed remedial measures typically include:

• Making the website accessible consistent with prevailing (albeit nonregulatory) standards;
• Adopting and maintaining a Web accessibility policy to ensure that the website remains accessible; and
• Training for Web and content development personnel on accessibility programming, functionality and design.

While the ADA does not specifically require banks and other businesses to have accessible websites, some courts have found an implicit requirement. Also, the DOJ is expected to issue regulations in 2018 that will expressly require website and mobile app accessibility. It may therefore be easier, less expensive and smarter business to go ahead and ensure that your website is accessible now, rather than waiting to get threatened with a lawsuit. There are several ways to get started, depending on your IT management and the complexity of your website:

• Have the bank’s internal IT team obtain website accessibility assessment software and perform a self-assessment. This is the least expensive option, but the self-assessment may not catch all of the accessibility issues, especially with complex websites.
• If the bank contracts for IT issues, have the contractor do an accessibility assessment. This might be more expensive than the first option unless the contractor works on a fixed fee.
• Have the bank retain an outside accessibility firm. This is generally the most reliable and comprehensive approach to website accessibility and is most likely to result in a set of website design guidelines that help to ensure ongoing accessibility. It generally would be the most expensive of the three options.

If a bank is in receipt of a website accessibility demand letter or suit, we encourage the bank to contact its insurance carrier to inform them of the claim and retain counsel experienced in these matters.