A number of community banks have recently received an unpleasant delivery: a demand letter from a law firm stating the bank is not in compliance with the Americans with Disabilities Act (the ADA) and suggesting a proposed settlement. The demand letter often alleges that the bank’s website falls short of the Department of Justice’s (the DOJ) prescribed accessibility requirements for blind or visually impaired persons and asks the bank to sign a settlement agreement incorporating injunctive relief and, of course, demanding lawyer’s legal fees.
However, the DOJ has yet to issue any website-specific accessibility requirements, which has created some confusion. The courts have not clarified things. Although banks themselves are “public accommodations” under the ADA, the applicability of the ADA to websites remains unsettled. There is currently a circuit split: the Eleventh Circuit held that the plain language defining “place of public accommodation” demonstrates the ADA does not apply to a business’ online presence;1 the Seventh Circuit held that the ADA applies to all websites hosted by entities covered under Title III;2 and the Ninth Circuit held that websites with a physical nexus to a place of public accommodation are covered by the ADA.3 With conflicting findings from the courts, it remains unclear whether the law requires a bank’s website to be accessible to visually impaired customers. Regardless, the DOJ has been enthusiastic in enforcing its broad interpretation of the ADA, under which websites of public accommodations, with or without a physical nexus, must be accessible to the disabled.
Plaintiffs’ firms continue to take advantage of the confusion created by the regulatory vacuum (caused by the DOJ’s failure to issue website accessibility rules) and the unsettled case law, and the DOJ has continued to intervene in Title III cases involving websites. Banks, therefore, need to be wary of any letters received asserting the bank’s failure to comply with website accessibility requirements, but banks need to understand the general expectations for website accessibility. In its interpretations and advocacy related to Title III website accessibility, the DOJ has adopted the voluntary accessibility guidelines promulgated by the World Wide Web Consortium (the WCAG 2.0 Standards).4 In recent settlements, the DOJ has required private businesses to comply with the WCAG 2.0 Standards and any bank running its own compliance checks to use either the WCAG 2.0 Standards or a similar standard.
Hogan Lovells is currently advising and defending several banks against claims of website inaccessibility and can assist any bank worried about potential claims in conducting self-examinations to determine whether website accessibility may be an issue. It is important to be informed and prepared to defend against claims of non-compliance in an area in which opportunistic members of the plaintiffs’ bar have become active.
1 Access Now Inc. v. Southwest Airlines, 227 F. Supp. 2d 1312, 1318-19 (S.D. Fla. 2002), appeal dismissed, 385 F.3d 1324 (11th Cir. 2004).
2 Doe v. Mutual of Omaha, 179 F.3d 557, 559 (7th Cir. 1999).
3 Earll v. eBay, No. 13-15134 D.C. No. 5:11-cv-00262-EJD (9th Cir. 2015). This case was expressly non-precedential, but followed the Ninth Circuit’s reasoning in a similar case that was not website-specific: Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
4 https://www.w3.org/WAI/intro/wcag.php
