Title III of the Americans with Disabilities Act (ADA) generally provides that, as a place of public accommodation, a financial institution must ensure that its goods and services are available to people with disabilities by making reasonable modifications, offering auxiliary aids and services, and removing communication barriers. However, neither the ADA nor the regulations promulgated by the Department of Justice (DOJ), which is responsible for adopting regulations implementing accessibility standards for the ADA, specifically address access to websites or mobile applications.

This lack of guidance has resulted in confusion regarding what standards to apply to ensure a website or mobile app is considered “accessible” under the ADA. Courts often use the Web Content Accessibility Guidelines (WCAG) to establish what are reasonable online accessibility standards. However, WCAG are private, unenforceable guidelines, and nothing in the ADA gives assurance to financial institutions that compliance with WCAG will equate to compliance with the ADA. While the DOJ has been consistent in its assertion that the ADA requires websites to be accessible, the DOJ had not, until recently, issued specific guidance addressing online compliance under the ADA.

Finally, in March 2022, the DOJ issued Guidance on Web Accessibility and the ADA (Guidance). But, if financial institutions were hoping for safe harbor guidance that would provide a clear path to online ADA compliance, they were certainly disappointed. The DOJ Guidance highlighted the importance of providing people with disabilities equal access to online information and provided examples of common accessibility problems, including no alternative text on images, no captions on videos, inaccessible forms, and no keyboard navigation. The Guidance also reiterated the DOJ’s long-held stance that the ADA’s accessibility requirements apply to all goods, services, privileges, or activities offered by places of public accommodation, including online.

However, the Guidance did not establish specific online accessibility standards that would allow financial institutions to guarantee ADA compliance. Instead, the DOJ noted that businesses have “flexibility” in determining how they comply with the ADA. This flexibility should be guided by existing technical standards, such as WCAG, and the DOJ’s general nondiscrimination and effective communication regulations, which define the auxiliary aids and services that must be offered to people with disabilities to include, for example, open and closed captioning, accessible electronic and information technology, screen reader software, and magnification software. But, notwithstanding compliance with WCAG’s technical standards, the ultimate determining factor for ADA compliance is whether the website or mobile app is fully accessible to people with disabilities.

Along with the DOJ’s emphasis on flexibility, the Guidance also emphasized that online accessibility is a priority for the DOJ. For example, in November 2021, the DOJ and Rite Aid Corporation entered into a settlement agreement that required Rite Aid to take various steps to ensure its COVID vaccine registration portal was accessible to people with disabilities. Rite Aid was also required to provide an “accessibility” webpage linked from its homepage and vaccine registration page that would provide an email address and toll-free number for customers to contact if they experienced difficulties related to their disability in accessing vaccine registration information.

While ADA online compliance may not currently be top-of-mind for financial institutions, the Guidance provided by the DOJ serves as a good reminder to be vigilant in ensuring online accessibility. This issue is a known priority for the DOJ and continues to be a frequent source of litigation for those businesses who fail to ensure the programs, services, and goods they provide online are accessible to people with disabilities. Consequently, financial institutions should continue to closely monitor their websites and mobile apps for accessibility and ensure any third-party vendor providing online services to the institution is contractually required to provide accessible services in compliance with the ADA.

Davenport Evans stands ready to help our banking clients with questions. Contact a lawyer at 605-336-2880, [email protected], or find a specific lawyer here.

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Davenport, Evans, Hurwitz & Smith, LLP, located in Sioux Falls, South Dakota, is one of the State’s largest law firms. The firm’s attorneys provide business and litigation counsel to individuals and corporate clients in a variety of practice areas. For more information about Davenport Evans, visit www.dehs.com.