As the ADA Turns 25, Website Accessibility Issues Pose Legitimate Risks for the Financial Services Industry
While 2014 was certainly a noteworthy year under Title III of the Americans with Disabilities Act (“Title III”), July 26, 2015, will mark the 25th anniversary of the ADA (“25th Anniversary”), an event that will almost certainly be celebrated with significant developments impacting the scope of Title III’s coverage. The U.S. Department of Justice (“DOJ”), charged with regulating Title III, is expected to advance and finalize regulations affecting a variety of industries, including, in some instances, financial services. Additionally, it would be reasonable to expect advocacy groups and plaintiffs—buoyed by these looming developments and emboldened by the 25th Anniversary—to continue the path followed over the past year, aggressively pursuing an expansive interpretation of Title III in “cooperative” agreements and litigation.
Contemplating what lies ahead is best done in tandem with an eye towards the year that was. While the year 2014 saw a variety of developments under Title III which targeted specific industries, one – relating to website accessibility – had potentially broader implications arguably impacting any entity covered by Title III, including financial services.
Over the past decade, website accessibility has become one, if not the most, prominent issue under Title III, as regulatory agencies at both the state and federal level and experienced advocacy groups have challenged the inaccessibility of websites under Title III and related state and local accessibility laws with increasing frequency. The legal landscape regarding this issue remains conflicted as courts have split over the issue of whether the term “Places of Public Accommodation” applies to websites and, if so, to what extent.
Generally, the division among courts has created three lines of thought: (i) the ADA must be read broadly to successfully achieve its purpose, allowing individuals with disabilities to fully and equally participate in society and, therefore, websites must be made accessible under Title III; (ii) the ADA must be read as it is written and, because “Places of Public Accommodation” are plainly defined with an extensive list of solely physical locations, the ADA must be amended, or new regulations promulgated, before Title III can apply to websites; and (iii) Title III applies to websites of Places of Public Accommodation to the extent there is a nexus between the goods and services provided by the brick-and-mortar Place of Public Accommodation and the website.
Notwithstanding this tension among the courts, DOJ—relying upon Title III’s overarching “full and equal enjoyment” obligation—has long taken a strident position that Title III, as currently drafted, unquestionably applies to the websites of Places of Public Accommodation. In addition, to further strengthen its position and to remove ambiguity about what constitutes an accessible website under Title III, since the summer of 2010, DOJ has been taking the steps necessary to promulgate regulations specifically addressing the requirements for website accessibility for public accommodations. At the time of this writing, the most recent estimates project that the next step in this rulemaking will occur this summer, shortly before the 25th Anniversary.
Separately, the U.S. Access Board continues to work on promulgating a revised version of Section 508 of the Rehabilitation Act of 1973, which addresses, among other accessible information and technology, website accessibility for federal agencies and the contractors of federal agencies in certain specific contexts. At the time of this writing, the most recent estimates project the next step in this rulemaking to occur sometime in early 2015. Previously, in December 2013, the U.S. Department of Transportation issued an amendment to the Air Carrier Access Act of 1986 (“ACAA”) placing accessibility obligations on public-facing websites of covered airlines and airports. 49 U.S.C. §41705; 14 C.F.R. Part 382.
Despite the fluid state of this issue on both the judicial and regulatory front, over the past year, both DOJ and advocacy groups, such as the National Federation of the Blind and the American Counsel for the Blind, have continued to press the issue, utilizing the threat of litigation and/or investigation to prompt website accessibility agreements with notable entities in a variety of industries. These agreements involved, among others, H&R Block, Peapod, Safeway, eBay, multiple colleges and universities (e.g., Florida State University, the University of Montana, and the University of Cincinnati), and other facilities, including hospitals and fashion retailers. In recent years certain Offices of the State Attorney General (e.g., New York State) have also pursued settlement agreements involving website accessibility in industries including financial services.
Fortunately, for those looking for guidance on how to make their websites accessible now or to take steps to prepare for the eventual finalization of DOJ’s looming regulations, there is a fairly clear path. Both the pending regulations and settlement agreements entered into by DOJ and advocacy groups generally define the appropriate level of website accessibility by referencing the Website Content Accessibility Guidelines (“WCAG”) 2.0, Levels A and AA, prepared by the Website Accessibility Initiative (“WAI”) of the World Wide Web Consortium (“W3C”). Places of Public Accommodation that wish to assess the accessibility of their websites and/or take steps to enhance their accessibility should engage in a user-based and programming-based dual-pronged audit of their websites against WCAG 2.0, Levels A and AA.