The current state of ADA compliance litigation & the credit union industry

As of the beginning of March 2018, there have been a lot of new developments with regard to ADA compliance and credit unions. Full disclosure, I am not a lawyer. So this should not be construed as legal advice, however, here’s the high level of the state of ADA litigation, as summarized at the recent CUNA Governmental Affairs Conference in Washington D.C. at the end of February, 2018.

1. Credit Unions in multiple states have been heavily targeted for demand letters, a practice that seems to be picking up speed since the beginning of 2017, with 99% of them coming from one law firm in California. States that have been hit particularly hard include New York, California, Florida and Georgia, with threats referencing Federal statutes and in some cases State law as well. In fact, 250 CUs were sent letters in January 2018 alone!
2. The Department of Justice has withdrawn formal filings around the issue that previously indicated they had the intention of adopting new standards regarding website ADA accommodations. However, they have also entered numerous statements of interest in private ADA website lawsuits, so they are definitely sending mixed signals on the issue. And Congress has yet to act meaningfully in either direction.
3. Wells Fargo is one large financial institution that was referenced for the clarity of their ADA guidelines and practice, in terms of website accessibility. Their online explanation is likely a useful point of reference for other financial institutions, and it was suggested that placing a clear accessibility policy similar to this one on your website was an excellent first step.
4. There have been recent rulings that have agreed with the notion that credit unions are unique in that they are member focused, so it is likely that any violations of web accessibility would need to be filed by a person who is a member or is eligible to join the institution.
5.  In general, recent cases have been inconsistent on the issue of whether or not websites are places of public accommodation, but it was suggested that the best way handle the issue is to be proactive and bring your CU website up to WCAG 2.0 level AA guidelines, as these are still the most generally accepted guidelines in place. The most effective step to mitigate the risk is to work on making websites accessible. It was also mentioned that scanning tools alone cannot ensure your website is complaint, rather you need live-user testing to verify your site functions for all users.
6. There are a number of key cases in the courts currently that will have an impact on this issue including:

   – Robles v. Dominos (on appeal in 9th circuit)
   – Gil v. Winn Dixie (appealed to the 11th circuit)

From these explanations what we took away was that the recent predatory litigation, while not held in high esteem by most, has opened the door to this issue in the financial services industry and it’s not likely to go away anytime soon.

Many agree that the disabled community isn’t really interested in lawsuits, but rather in websites that are in compliance with the law, which they believe applies to banks and credit unions.

I would guess that most credit unions will eventually agree. So, in my opinion, it’s time to get your websites assessed and move forward with updates to ensure that all users can access your products and services online with ease.

For more information visit our blog or email us for help navigating this tricky issue.