A great website or app is already expensive to produce—so make sure you do not end up paying more down the road. As we have recently discussed, the application of the Americans with Disabilities Act (ADA) is rapidly evolving. When the Act became law in 1991, no one had even considered the possibility of an Internet service that delivered flowers, but now a lawsuit on that issue is going to trial under the ADA. In much the same vein, provision of consumer financial products and services online—through websites and mobile applications—is a relatively new way to allow consumers to access these services, whether they are applying for and receiving loans and leases, or looking for brokerage or investment services, crowd funding, payment processing, credit reporting, insurance, or the many other available financial products and services. But online business is now not only the core of fintech companies and financial innovators, but an integral part of traditional brick-and-mortar financial institutions as well. As companies expand their online offerings, they will also need to pay attention to the potential risks involved.
How Is the ADA Being Applied Now?
Individual plaintiffs and Plaintiff Access Now, a disability rights organization, sued 1-800-Flowers.com in February 2017, captioned Gathers v. 1-800-Flowers.com, in the District Court of Massachusetts. The plaintiffs are seeking attorneys' fees and injunctive relief under Title III of the ADA. The ADA requires public accommodations to provide for equal access via "auxiliary aids and services," unless doing so would "fundamentally alter" the nature of the service or would "result in an undue burden." The auxiliary aid in this case is screen reader software, which allows visually impaired consumers to access websites by producing a narrated or braille version of a webpage. The plaintiffs claim that the software is inoperable on defendant's websites, thereby preventing access by blind individuals, and they request injunctive relief in the form of compliance with the Web Content Accessibility Guidelines 2.0 (WCAG 2.0). (While not a legal requirement, WCAG 2.0 is a widely accepted website accessibility standard, under which online content should be perceivable, operable, understandable, and robust.) The court has allowed the case to proceed, denying the defendant's motion to dismiss.
An underlying issue that remains to be settled by the courts is the status of websites as places of public accommodation, which is a requirement for application of Title III of the ADA. The ADA defines "public accommodation" through twelve categories of entities, none of them mentioning "websites" or the "Internet," and courts are split on whether a public accommodation must be a physical location. Some courts, as in the 1-800-Flowers.com case, have found a website to be a public accommodation, despite the lack of an association with a physical location. Others have held there must be a "nexus" to a physical location. The Southern District of Florida, in Gil v. Winn-Dixie Stores, recently considered this issue specifically in the website accessibility context, with the facts of that case mirroring those in 1-800-Flowers.com. Here, the court found the store's website to be a public accommodation under the ADA, but with the caveat that the website was "heavily integrated with Winn-Dixie's physical store locations," operating as a "gateway" to the brick-and-mortar locations. These cases follow several other website accessibility rulings for plaintiffs in 2017.
What Does This Mean for Online Financial Services Providers?
These days, financial services providers, banks, and fintech companies resemble 1-800-Flowers more than they do Winn-Dixie: These companies' consumer channels are often primarily (if not solely) online, with physical locations serving a reduced role or providing back-office administration. The risks of ADA lawsuits, which are brought primarily by private litigants rather than government regulators (on December 26, 2017, the Department of Justice withdrew an ADA rulemaking after nearly eight years of review), are the same whether a company is selling flowers or making loans. And ADA lawsuits appear to be on the rise. While a recent bill could reduce ADA litigation, an Independent Community Bankers of America survey indicated that as of December 6, 2016, roughly one-fifth of all community bank respondents had received an ADA demand letter.
Mitigating risks with regard to ADA is an enterprise-wide endeavor, involving an institution's leadership, legal and compliance divisions, advertising and marketing units, customer service, and IT. These risks are compounded by the myriad disclosures and other materials that are often required when advertising and offering credit products.
What Can Companies Do to Reduce Their Risks?
While there is no way to completely eliminate litigation risks, there are steps that companies can take to reduce them:
- Have a plan and stick to it: Develop and implement an ADA policy to assess the accessibility of relevant products and services to persons with disabilities and to enhance accessibility as appropriate.
- Look inward: Include ADA compliance in the company's audit schedule, and review ADA issues internally, or with the help of an accessibility audit vendor.
- Look outward: Include WCAG 2.0 compliance in vendor contracts, as part of due diligence reviews, and vendor management processes.
- Practice makes perfect: Make sure customer representatives, advertising and marketing teams, and IT personnel receive training regarding the ADA, and are able to address disability-related questions and requests.
- Roll with the punches: Incorporate ADA-related claims and demands into the company's risk management process. Work with experienced counsel to defend such claims. Evaluate the claims to see if websites or mobile applications can be updated to avoid such claims in the future.
- Get feedback: Provide a mechanism for consumers to report accessibility issues and concerns and incorporate it into the company's overall complaint management process. Seek input from persons with disabilities who have experience providing such input to businesses. Avoid litigation by addressing accessibility issues on the front end, and evaluate potential risks that may be reported by consumers.