Community Banks Released From ADA Liability

Many community banks received threatening letters from the advocacy group Access Now alleging that the banks’ websites violated the Americans with Disabilities Act (ADA) for the visually impaired in provision of electronic information technology, including the banks’ websites, online banking, mobile banking and apps, ATM services, and telephone banking (known collectively as electronic banking services). These letters started arriving at banks in late 2016 and generally offered to resolve alleged claims by working with Access Now’s attorneys—Pittsburgh, Pennsylvania-based Carlson Lynch Sweet Kipela and New York-based KamberLaw LLC—to bring the banks’ websites into compliance with the ADA. The banks that chose not to work with Access Now were threatened with potential lawsuits.

On November 20, 2017, the Independent Community Bankers of America (ICBA) announced it had reached an agreement with Access Now to stop the mass distribution of letters to community banks threatening to bring actions against these banks for alleged violations of ADA. The industry trade group reached a mutually agreeable settlement with Access Now, in which the ICBA will adopt and distribute to its current members a restatement of voluntary access principles that are acceptable to Access Now, as a reaffirmation of the banking industry’s ongoing commitment to encourage accessibility for visually impaired persons. Access Now will release ICBA member banks and all U.S. banks with less than $50 billion in assets from all claims related to the provision of electronic banking services and the ADA.

It is unclear if the release requires all ICBA banks and non-member banks with assets of less than $50 billion to adopt the Access Now principles. In addition, it is unclear if adopting and following the Access Now principles by community banks will protect them from threatened litigation by organizations similar to Access Now. However, it is advisable to adopt and follow the principles for protection against claims.

The principles adopted by the ICBA are as follows:

1. Ensure accessibility. The ICBA will encourage its members to make reasonable efforts to ensure that digital platforms and services are accessible to visually impaired and low vision customers, as well as potential customers and companions to such customers or potential customers.
2. Train bank employees. The ICBA will encourage its members to conduct periodic training for bank employees responsible for electronic banking service accessibility to promote greater accessibility.
3. Develop electronic banking service accessibility guidelines. The ICBA will encourage its members to develop electronic banking service accessibility guidelines that are designed to promote increased independent use of the member’s electronic banking services by customers and potential customers with disabilities, as well as their companions. The details of the accessibility policies adopted, if any, will be at the sole discretion of each member bank.
4. Implement the principles within the next three years. In the event that formal guidelines are not issued by the U.S. Department of Justice in 2018, the ICBA encourages its members to implement its principles on or before December 31, 2020.
5. Incorporate access information into existing customer service. The ICBA encourages its members to publicly post notification and contact information in connection with their provision of electronic banking services for customers and potential customers who claim to encounter access barriers. Members are encouraged to respond to inquiries or complaints related to any alleged access barriers in a reasonably prompt manner.
6. Communicate with third-party vendors. The ICBA encourages its members to utilize their existing vendor management due diligence process and communicate to the vendor that consumer-facing digital content provided by that vendor should conform to the ICBA’s principles.

While the DOJ has not adopted a website accessibility standard, one acceptable set of voluntary principles for accessibility is the World Wide Web Consortium’s Version 2.0 of its Web Accessibility Guidelines. Nothing within the ICBA’s principles intends to suggest that members should adopt an accessibility standard greater than that which may ultimately be adopted by the DOJ, or that equal access may not lawfully be provided in an alternative fashion. All community banks should endeavor to adhere to the principles set out above and watch for the release of website accessibility standards by the Justice Department.