In an increasingly online world, financial service providers are tasked with ensuring that their websites can be accessed by all people—regardless of cognitive or physical capabilities. The risks of failure includes defense of fair lending claims, given that access to credit (through the internet) should not be denied based on disability.
For the last 10 years, financial services companies have been required to comply with the W3C’s Web Content Accessibility Guidelines (WCAG) 2.0, which help ensure those with a disability can access online content. Yet despite being in existence for a decade, the Department of Justice (“DOJ”) has refrained from issuing any clear statement on what companies can do to satisfy these best practice guidelines. This lack of clarity has left companies wondering how they can avoid legal liability - as those that have failed to comply have been found liable for discriminatory practices and violations of fair lending guidelines. Until the DOJ issues a statement to the contrary, companies avoiding liability and unwanted litigation should aim to fall within the W3C’s guidelines as closely as possible.
To the relief of many, this goal may be more clearly attainable in the wake of the most recent update on June 5, 2018. The W3C issued WCAG 2.1, an updated set of guidelines that builds upon previously established rules and bolsters the organization’s internet accessibility efforts.
In December 2008, the W3C published WCAG 2.0, a four-layered guidance system intended to make online content more accessible to people with blindness and low vision, deafness and hearing loss, limited movement, speech disabilities, photosensitivity, learning disabilities and cognitive limitations. On the highest level, the W3C established four overarching principles: perceivability, operability, understandability and robustness. Beneath these principles were 13 guidelines, which provided the general framework for making content accessible to people with disabilities. The guidelines were accompanied by a set of testable “success criteria” to help ensure the guidelines were being met. These criteria were wide-ranging in scope, requiring websites to offer text alternatives for any non-text content, emphasizing predictability and readability, and encouraging webpages to be designed in a way that reduced the risk of seizures. These criteria were assigned a conformance level (A, AA, or AAA) to signal how essential they were for maintaining accessibility and how applicable they were to other types of web content. Level A represented minimum accessibility capabilities applicable to most types of web content, while Level AAA signaled enhanced accessibility capabilities that could not be applied to most other content. Notably, Levels A and AA became the legal baseline for website accessibility compliance, frequently being cited in web accessibility litigation as a result.
WCAG 2.1 adds 17 more Success Criteria to those previously established in 2008. These additional criteria aim to make online content more accessible to three specific groups: (1) users with cognitive or learning disabilities, (2) users with low vision and (3) users with disabilities on mobile devices. Twelve of the new criteria were assigned conformance Levels A or AA, meaning it is likely that these standards will soon be adopted by regulators and courts as essential tools for determining whether a website is compliant with accessibility guidelines. Because a new legal baseline is presumably on the horizon, it is in the best interest of developers to begin implementing these changes now to avoid unwanted and unnecessary litigation.
WCAG 2.1’s New Success Criteria (Levels A and AA in bold):
1.3.4 Orientation (AA)
1.3.5 Identify Input Purpose (AA)
1.3.6 Identify Purpose (AAA)
1.4.10 Reflow (AA)
1.4.11 Non-Text Contrast (AA)
1.4.12 Text Spacing (AA)
1.4.13 Content on Hover or Focus (AA)
2.1.4 Character Key Shortcuts (A)
2.2.6 Timeouts (AAA)
2.3.3 Animation from Interactions (AAA)
2.5.1 Pointer Gestures (A)
2.5.2 Pointer Cancellation (A)
2.5.3 Label in Name (A)
2.5.4 Motion Actuation (A)
2.5.5 Target Size (AAA)
2.5.6 Concurrent Input Mechanisms (AAA)
4.1.3 Status Messages (AA)