Fourth Circuit Court of Appeals Upholds Dismissal of ADA Website Accessibility Case Against CU

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Written by Brandy Bruyere, Vice President of Regulatory Compliance, NAFCU

Just over a year ago, NAFCU began filing amicus briefs to support Virginia credit unions who were targeted by a California plaintiffs’ firm. This firm often claimed that a credit union’s website did not comply with the Americans with Disabilities Act because the credit union’s website allegedly did not meet private industry standards for accessibility. However, the Department of Justice’s ADA regulations do not contain specific website accessibility standards.

NAFCU recognizes the importance of the ADA and fully supports efforts to ensure individuals with disabilities have equal access to financial services.  However, meritless and costly lawsuits are not the answer. NAFCU will continue to advocate for clear rules of the road in this area. In the meantime, we have our first federal appellate outcome on this issue.

So, how did we get here? In late 2017 and the early months of 2018, hundreds of credit unions in 26 states received demand letters, often from the same law firm, seeking damages because an unnamed client allegedly could not access the credit union’s website. The firm sued dozens of credit unions, often representing individuals who were not in the credit union’s field of membership. As these cases developed, NAFCU filed sixteen amicus briefs in seven states in support of credit unions. Five federal cases were dismissed in Virginia alone in the spring of 2018, and two of these were appealed to the Fourth Circuit, whose jurisdiction includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia. This is the first federal appeals court to hear one of these cases, and NAFCU filed amicus briefs in both pending appeals. The court held oral argument for one case back in October 2018, which NAFCU attended, and yesterday the panel of judges reached a unanimous decision – the plaintiff in this specific case did not have “standing” to bring a suit.

What is standing? This is a legal principle that generally determines whether a particular party has the ability to file a lawsuit in court. In a federal court, this requirement includes, in part, suffering an “injury in fact” meaning the harm is concrete, and actual or imminent. Many credit unions that defended ADA website accessibility cases argued that if the credit union is not legally permitted to offer services to the plaintiff, such as a person outside the credit union’s field of membership, then the specific plaintiff does not have standing.

Yesterday, the Fourth Circuit Court of Appeals agreed. The court noted that the plaintiff’s position, if adopted, would “allow any aggrieved person to challenge any allegedly deficient website belonging to anyone in the country. It would require us to open the courthouse doors to abstract and hypothetical controversies, in brazen violation of Supreme Court precedent.” Instead, the court unanimously agreed that, while the ADA is critical to surmounting the challenges posed to disabled Americans, this plaintiff, someone who is not in the credit union’s field of membership, does not have standing to bring this kind of lawsuit:

“…But to ignore the requirement of an injury in fact in this case would be to transform constitutional standing into a null item. [Supreme Court precedent] requires a concrete and particularized harm to find…standing…Standing doctrine will doubtless pose complicated questions as it is applied to Internet-based harms in the future, but the case before us today is straightforward and narrow. [The plaintiff] is not a member of the Credit Union, he is not eligible to become a member of the Credit Union, he has no plans to become eligible to be a member of the Credit Union, and no action we take could possibly make him eligible to become a member of the Credit Union….”

There are cases pending on other federal appellate courts. Appellate courts are not obligated to follow one another’s rulings, so time will tell if the two other circuits considering the issue will reach a similar conclusion. There is also a second case in the Fourth Circuit where NAFCU also filed an amicus brief. We will continue monitoring this issue and keep credit unions updated as the cases develop.

Meanwhile, as member-focused financial institutions, many credit unions have already taken steps to ensure their websites are accessible to those with visual impairments and they are serving all of their members’ needs. This may include adopting private industry standards to make their websites compatible with screen readers. This could also include placing accessibility statements along with toll-free numbers that are compatible with screen reader technology so those with visual impairments can easily access additional information and assistance as needed. Overall, credit unions are committed to providing members with high quality service, including being accessible.

Working on a website can be difficult. Adding new media and updating pages is chore, even though you know your company website needs to evolve and become more accessible to the many users you are trying to reach. Maybe when you first built it, accessibility wasn’t even really discussed. But now you’ve taken a step back, looked at your customer base with a desire to include everyone and you’ve realized just how important it is to make your site accessible. However, the thought of building a robust site that can do all the things you want it to do is overwhelming.

What is Web Accessibility

A practice of designing and coding the website in order to provide complete compatibility in accessing it by people with disabilities. In addition, it is a way to improve search engine optimization only an ADA Compliant Web Designer will help you to make your website Compliant. Is your website compatible? By going through the checklist below, you can get the answer.

Assessing Current Web Pages and Content

  • The website must include a feature like a navigation link at the top of the page. These links have a bypass mechanism such as a “skip navigation” link. This feature directs screen readers to bypass the row of navigation links and start at the web page content. It is beneficial for people who use screen readers to avoid to listen to all the links each time they jump to a new page.
  • All the links should be understandable when taken out of the context. For example, images without alternative text and links without worded as “click here”.
  • All the graphics, maps, images, and other non-text content must provide text alternatives through the alt attribute, a hidden/visible long description.
  • All the documents posted on the website should available in HTML or another accessible text-based format. It is also applicable to other formats like Portable Document Format (PDF).
  • The online forms on the website should be structured so assistive technology can identify, describe and operate the controls and inputs. By doing this, people with disabilities can review and submit the forms.
  • If the website has online forms, the drop-down list should describe the information instead of displaying a response option. For instance, “Your Age” instead of “18-25”.
  • If the website has data charts and tables, they should be structured so that all data cells are associated with column and row identifiers.
  • All the video files on the website must have audio descriptions (if necessary). This is for the convenience of blind people or for having a visual impairment disability.
  • All the video files on the website must have synchronized captions. People with hearing problems or deaf can access these files conveniently.
  • All the audio files on the website should have synchronized captions to provide access to people who are deaf or hard of hearing.
  • All web pages should be designed so that they can be viewed using visitors’ web browser and operating system settings for color and font.

About Website Accessibility Policy and Procedures

  • One must have a written policy on website accessibility.
  • The website accessibility policy must be posted on the website at a location where it can be easily found.
  • The procedure should be developed to ensure that content is not added to the website until it has been made accessible.
  • It should be confirmed that the website manager has checked the code and structure of all new web pages before they are posted.
  • While adding the PDFs to the website, these should be accessible. Also, the text-based versions of the documents should be accessible at the same time as PDF versions.
  • Make sure that the in-house and contractor staff has received the information about the website accessibility policy and procedure to confirm the website accessibility.
  • It should be confirmed that in-house and contractor staff has received appropriate training on how to ensure the accessibility of the website.
  • The website should have a specific written plan if it contains inaccessible content. Also, it should include timeframes in place to make all of the existing web content accessible.
  • A complete plan to improve website accessibility should be posted along with invited suggestions for improvement.
  • The homepage should include easily locatable information that includes contact details like telephone number and email address. This is useful for reporting website accessibility problems and requesting accessibility services with information.
  • A website should have procedures in place to assure a quick response to the visitors with disabilities who have difficulty in accessing information or services available on the website.
  • Feedback from people who use a variety of assistive technologies is helpful in ensuring website accessibility. So make sure to ask disability groups representing people to provide feedback on the accessibility of your website.
  • Testing the website using a product available on the internet is helpful, These tools are of free cost and check the accessibility of a website. They may not identify all accessibility issues and flag issues that are not accessibility problems. However, these are, nonetheless, a helpful way to improve website accessibility.

Checklist of Action Items for Improving the Accessibility of a Website

In addition, while considering the above suggestions, the following checklist initially prepared by the U.S. Department of Health and Human Services for Federal Agencies provides further guidelines on ways to make websites more accessible for persons with disabilities.

This practical advice, as well as another checklist, are available at:

Satisfying all of these items does not necessarily mean that a website complies with ADA, but it will improve the website’s accessibility and decrease the risk of litigation. Again, an Expert or Web Accessibility Consulting & Services provider should be engaged to conduct a comprehensive review of your website.
Nothing brings you closer to reality than actually facing it. This is the premise of my latest attempt to spread awareness about Web Accessibility.
For better understand, here is a link in which a practical example is shown to make the websites’ user experience better by following the guidelines. Also, it tells the issues affecting various users on the internet with solutions.
You can make your website ADA compliant in an easy way by consulting the professionals, who can do this job effortlessly. Also, you can get a quick website audit from To Be ADA Compliant that offers complete web accessibility consulting & services in California, USA.