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COMPLIANCE CORNER - ADA COMPLIANCE FOR WEBSITES

COMPLIANCE CORNER - ADA COMPLIANCE FOR WEBSITES
Posted: Jul 18, 2018
Categories: Regulations
Comments: 0

ThePaymentsReview continues a new feature that highlights regulatory topics important to credit unions.

When one thinks of ADA accessibility, sidewalk ramps, disabled parking spaces, and wheel chair access immediately comes to mind. What about websites?

The Americans with Disabilities Act (ADA) sets standards for accessibility for people with disabilities to all commercial and public entities that have “places of public accommodation”. In 2010, the Department of Justice proposed that the definition of places of public accommodation could include the internet, and hence, websites of commercial and public entities.

What does it mean to have an accessible website?

Many visually impaired people rely on screen readers to keep up with email, searches, browse websites, and lead a normal life in a time when computer screens are the primary form of information flow. The screen readers literally read text from the website out loudly. However, they cannot read text in a graphic image. Text in hidden tags ‘trip up’ the screen readers, as do links that open in new windows.

Many blind people have their keypad memorized, but cannot use a mouse, as they cannot visually locate the cursor on the screen. Therefore, they tab from field to field. What sighted readers find second nature, such as filling in fields, can be frustrating for a blind person relying on a screen reader when there are no tags associated with the fields. (It is not uncommon for a blind user to hear "edit, edit, edit, radio button not checked, submit button" as they tab across the fields to be filled in)

PDFs are a major problem for compliance. Many credit unions have downloadable PDFs for disclosures or promotions, and most of these are not readable by assistive technology. Consider replacing these documents with html versions.

Remember that hearing-impaired members may also be accessing your site. The main problem for them is viewing one of your promotional or “how-to” videos. Unless there are subtitles, they may not be able to follow the content.

What has changed recently to make this such a huge issue?

In a landmark case in June 2017 in Florida, Winn Dixie (grocery store) was found to have violated Title III of the ADA by having a website that was not useable by the plaintiff. This case set the precedent that non-exempt business (more than 15 employees) must provide an accessible website, as defined by the Web Content Accessibility Guidelines (WCAG) 2.0 AA. Possibly more important, is that it set the precedent of awarding attorneys’ fees and costs to the plaintiff. This opened the door to a new cottage industry of “predatory plaintiffs”, who are testing websites for compliance issues and taking legal action against companies.

With the legal precedent set, between June of 2017 and the end of that year, lawsuits were filed against Foot Locker, Brooks Brothers, most major universities, and nearly every hotel website. Since then, many other consumer-facing website owners have been sued, and credit unions have not escaped notice. CUNA was tracking three dozen active cases in February 2018. One of those cases, a lawsuit brought against Local 20 IBEW FCU of Grand Prairie, Texas was dismissed as frivolous. In December of 2017, the DOJ rescinded it’s 2017 proposed rule-making related to website accessibility. Unfortunately, this action did not put an end to the many lawsuits. The problem is that it costs little for plaintiffs and their lawyers to file the lawsuits, with plenty of upside in the case of settlement or possible court win. However, it costs the credit union lost time, legal fees, and if the case is not dismissed, court ordered website upgrades in a very short period of time, in addition to the plaintiff’s attorney’s fees plus damages.

What can credit unions do to keep out of the cross-hairs?

There certainly are legitimate lawsuits where people with disabilities fight for their right to access. But in the case of website accessibility, in too many cases it is merely a “shakedown”. In some of the lawsuits brought against credit unions, the plaintiff would not qualify in that credit union’s FOM. But it still requires legal fees to fight the case and have it dismissed. There are steps credit unions can (and should!) take to prevent this from happening.

In a significant court case, Domino’s Pizza was sued but had the case dismissed. The reason: even though the website was not fully ADA compliant, it did have an 1800 number which was readable by the screen reader, which gave the web user access to all of the information and capabilities available on the website. This has become known as the “Domino’s Disclosure”. A quick and simple defensive measure is to be sure that every page on the website has a phone number published in e-reader format.

The end game is to have the website meet all 61 guidelines laid out in WCAG 2.0 to either at the AA or AAA level! If the credit union uses in-house staff for its website design, then it is best to outsource ADA compliance testing to any one of the number of specialists. If the website is outsourced, go back to the vendor, and ensure that the website meets WCAG 2.0 AA standards, and get the response in writing. When negotiating with a new website vendor, negotiate language in the contract that indemnifies your credit union should it become liable for damages.

In addition to reviewing your website, also review your liability coverage to ensure you have sufficient levels of insurance should you be the victim of a lawsuit.

One important thing to keep in mind: every time the website is updated with new ads or new content, compliance must be re-tested. There are also in-house testing tools, which may not work as well as a company that specializes in this area but would show the court intent to be compliant, and may get the case dropped ... "may".

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Dave Chojnacki

Dave ChojnackiDave Chojnacki

Dave has more than 10 years of relationship management experience and holds a Credit Union Compliance Expert (CUCE) Designation from CUNA. He currently serves as Director of Consulting Services at Trellance.

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