Credit Unions Push DOJ for ADA Guidance

Financial Services Law

Financial institutions need help, the Credit Union National Association (CUNA) told newly confirmed U.S. Attorney General William Barr, urging the Department of Justice (DOJ) to provide clear guidance on how it believes the Americans with Disabilities Act (ADA) applies to website accessibility.

The lack of clarity about whether the statute applies to websites (and if so, how) has been a problem for credit unions for years, the organization said, with dozens of lawsuits negatively impacting their ability to serve their communities. Comparable lawsuits have been filed against countless banks across the country over the past several years.

What happened

As the use of the Internet increased and ecommerce exploded, the applicability of the ADA to websites became an issue for financial institutions. In an attempt to help guide businesses, the DOJ issued an advance notice of proposed rulemaking in July 2010.

But the agency repeatedly pushed out the target date for its rulemaking. In the interim, private plaintiffs sued companies with a web presence for alleged violations of the statute, slowly building a growing body of case law applying the ADA to websites.

For example, a federal court in Florida ruled that a supermarket chain could be liable under the ADA for operating an inaccessible site, while the U.S. Court of Appeals for the Ninth Circuit recently held that the statute applies with equal force to websites and apps where their accessibility impedes access to the goods and services of the physical location.

Although the DOJ maintained a hands-off approach under Attorney General Barr’s predecessor, the time has come to take action, CUNA said.

“CUNA strongly recommends the [DOJ] reconsider its approach and clarify the issue through guidance or a rulemaking—until that time, the ADA will continue to be applied unevenly and unpredictably based on the whims of local federal courts,” CUNA president and CEO Jim Nussle wrote.

Noting that ADA lawsuits have been filed against credit unions in 30 states, CUNA explained that because credit unions are community-based financial institutions, the strain on resources resulting from these legal actions can jeopardize their ability to serve their members. While the organization strongly supports the mission of the ADA, the legal threats are being sent to credit unions by law firms thousands of miles away “and on behalf of a client without any connection or possible connection under our industry’s field of membership restrictions to the credit unions being threatened,” Nussle said.

Plaintiffs’ attorneys are taking advantage of the DOJ’s decision not to finalize a regulation or provide substantive guidance on standards of compliance for website accessibility under the ADA, CUNA said.

“On several occasions, CUNA has recommended the [DOJ] initiate a process to solicit input from stakeholders with the goal of issuing a clear ADA website accessibility standard for which credit unions and other entities can comply,” according to the letter. “It is also essential for the [DOJ] to clarify whether Web Content Accessibility Guidelines (WCAG) 2.0 is the appropriate compliance standard, as some courts have held, and if entities must also adjust to any subsequent amendments made to WCAG.”

For support, CUNA cited to a recent House Report from the Appropriations Committee, which states, “The Committee expects the [DOJ] to clarify standards for website accessibility requirements pursuant to the [ADA] in fiscal year 2019. The Committee recognizes the confusion caused by a lack of uniform website accessibility standards. The lack of clear requirements disadvantages small businesses that provide essential services for our communities.”

“CUNA and our members sincerely hope the Justice Department, under your leadership, clarifies the standard for website accessibility under the ADA,” Nussle concluded.

To read the letter from CUNA to the Attorney General, click here.

Why it matters

While the majority of courts that have considered the issue have held that the ADA requires websites (and mobile apps by extension) to be accessible, the lack of clarity from the DOJ regarding exactly how they need to be accessible continues to encourage litigation under the statute. As CUNA explained, without substantive guidance from the DOJ, courts are creating a patchwork of rules for businesses across the country, including financial institutions. Until more clarity is provided under the ADA, all financial institutions are encouraged to proactively take steps to avoid website ADA claims. A list of concrete steps is provided here.