A recent decision by the Trump administration to indefinitely delay the release of rules concerning disabled consumers' access to websites might appear to give companies a pass on making their sites compliant with the Americans with Disabilities Act.

Banking attorneys don’t see it that way. Instead, they’re advising banks that have not updated their websites to do so.

One reason is that a recent court ruling went against companies. A federal judge in June ruled in favor of visually impaired consumers who said they could not access the website of the supermarket chain Winn-Dixie. It was the nation’s first ruling of its kind, according to legal experts.

Another reason is that the Trump administration’s decision has muddied the waters surrounding the ADA. Without specific rules around what’s legal, plaintiffs’ attorneys could feel more emboldened to pursue legal action against banks and other firms that have not yet made their websites ADA-compliant, attorneys say.

“This is an area where the lack of regulation has helped the plaintiffs' bar extract more settlements,” said David Raizman, an attorney at Ogletree Deakins in Los Angeles who advises companies on disability law. “Regulations would help the business community.”

ADA chart

The ADA, which became law in 1990, dictates how stores and buildings must be made accessible to people with physical disabilities. But it’s lacking in detail on website accessibility. A consortium of private companies created the Web Content Accessibility Guidelines in 2008 to help clear up the law’s requirements.

Those guidelines state that banks, along with other consumer-focused companies like retailers, hotels and restaurants, should ensure that deaf, blind and visually impaired consumers can access the content on their websites, as well as make purchases and communicate with the company. This is done through features like screen-reader software that plays an audio file of text on a page.

But those guidelines don’t carry the weight of law, and the Department of Justice under President Obama had indicated that it would produce its own specific rules that were set to take effect sometime in 2018 or 2019. Those rules seemed to be placed on indefinite hold this summer, however, when the DOJ moved the ADA regulations to “inactive” status. The Justice Department did not provide a reason for its decision.

Attorneys are not entirely certain what the “inactive” designation means, Raizman said.

“The inactive list is a new animal in the regulatory world,” he said. “We are left to guess what it may mean. It sounds like the DOJ is no longer actively pursuing regulations for websites.”

Yet ADA website compliance remains an active area of litigation. The National Federation of the Blind and other advocates have sued companies that own websites that aren’t equipped with features that aid the visually impaired. Banks, including the $1.2 billion-asset AmeriServ Financial in Johnstown, Pa., have been a frequent target.

Several community banks in Virginia have also recently received demand letters from law firms threatening lawsuit over ADA noncompliance, said Melvin Tull, the general counsel at the Virginia Bankers Association.

It appeared this summer that banks might see some relief from these lawsuits, when one of the most active law firms in this area said it would no longer represent plaintiffs in these types of cases.

“Our firm does not intend to undertake the representation of any new clients with regard to any ADA claim against a bank,” Bruce Carlson, an attorney at Carlson Lynch in Pittsburgh, said in an email to American Banker.

Carlson Lynch’s decision may have been prompted by the efforts of several state banking associations, which had filed complaints against these law firms with state bar associations that monitor attorneys’ conduct, said Bob Hartwig, general counsel of the Iowa Bankers Association.

Additionally, some state organizations, including the Illinois Bankers Association, sent cease-and-desist letters to the law firms, telling them to withdraw the letters sent to banks threatening litigation.

Still, given all the uncertainty surrounding the issue, banks should probably opt to pay a technology vendor to fix their websites, said Hugh Wellons, a banking attorney with Spilman Thomas & Battle in Roanoke, Va. The project could cost about $20,000, depending on the number of pages and features on a bank’s website, he said.

“The reality is that, for a $150 million or $200 million-asset community bank, that’s not pocket change,” Wellons said. “But that’s the position we’re in.”

The cost to upgrade websites is probably cheaper than fighting an ADA lawsuit, Tull wrote in a newsletter sent to members this month.

“The best thing a bank can do to avoid receiving a demand letter, or to defend itself once it receives a letter, is to get its website into reasonable compliance with the ADA,” he wrote.

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