Banks are sitting ducks for ADA lawsuits

Fifty-one banks have been sued this year in federal court for operating websites that, consumers with disabilities say, are too difficult or impossible for them to use.

And those suits may only be the beginning unless Congress adopts legislation that would make it harder to take businesses to court over violations of the Americans with Disabilities Act.

The surge in lawsuits began last year after the Justice Department declined to issue ADA-related guidelines that could have clarified compliance rules. The 51 banks — including Fifth Third Bancorp, Bank of New York Mellon and Signature Bank — are among hundreds of companies that have been sued, according to a review of online federal court dockets.

More banks could be the targets of litigation for two primary reasons.

Most financial institutions have done little or nothing to upgrade their sites, nor have many of them approved corporate policies on the topic, said Matthew Triner, a director at User1st, a website remediation firm in Washington. Most bank executives simply have not yet realized the legal risk they face, he said.

“A lot of people do slapdash efforts to get into compliance,” Triner said. “But if you don’t have a program in place to continuously work on it, you’re going to fall out of compliance. Websites are not static things. They’re always changing.”

Meanwhile, plaintiffs’ attorneys are using software specifically designed to detect website flaws, said Kristen Perkins, a Hinshaw & Culbertson attorney in Fort Lauderdale, Fla., who defends companies against ADA lawsuits.

“Once your site has been run through one of these accessibility checkers and they find any level of noncompliance, then you can be sued,” she said.

The weaknesses being found are not just on the retail side, another expert said.

Website pages for submitting job applications are an emerging area of liability for banks and other private companies, said Minh Vu, an attorney in Washington with Seyfarth Shaw. The large majority of pages are not ADA accessible, and trial lawyers have started suing on the grounds of employment discrimination, she said.

“If the only way you allow a job seeker to apply for a job is through the website and it’s not ADA accessible, there could be a legal claim there,” Vu said.

Banks have numerous options for how to address ADA issues. They can purchase software that allows their websites to work with existing tools, such as the JAWS screen-reader for the visually impaired, Triner said. His company also makes software that equips websites with features such as keyboard navigation aids and conversions of screens to monochromatic colors, and a tool to block bright, flashing lights, which helps consumers with epilepsy.

Since consumers use banking websites to conduct transactions, and not simply to view or hear content, it’s more difficult for banks to come into ADA compliance, Triner said.

“The more transactional your site is, the more complex the accessibility issues,” Triner said.

There is also the question of what types of content a company must make accessible. It seems obvious that a bank should make transactional functions like bill-pay platforms accessible, but something that is purely marketing in nature is more uncertain, Vu said. Thus, banks and other companies have a difficult time deciding whether to upgrade all of their website pages or just some of them.

“It’s difficult to draw the line between what’s a marketing item and what’s an offer of certain services,” Vu said. “Many times there could be things on a website that seem to be just there to promote the company, but they actually provide you with helpful information.”

Three banks have settled ADA cases since March, according to online court dockets: the $323 billion-asset BNY Mellon, the $5 billion-asset TrustCo Bank in Glenville, N.Y., and the $317 million-asset New Millennium Bank in Fort Lee, N.J.

Terms of the settlements were not disclosed in the online records. A BNY Mellon spokeswoman declined to comment. TrustCo and a lawyer for New Millennium Bank did not respond to requests for comment.

Settlements have a potential upside beyond the immediate case — if a judge signs off on a settlement, a bank can use that as an argument of defense in future litigation, Triner said.

However, if a bank reaches a settlement out of court and without a judge’s approval, “you can be sued again tomorrow” by other plaintiffs, he said.

Six banks, including Fifth Third, of Cincinnati, and the New York-based Signature have filed motions this year to dismiss lawsuits that allege ADA website violations, according to online court documents.

The lawsuit filed against Fifth Third “is especially egregious, as Fifth Third’s website was designed specifically to comply with nonbinding private sector accessibility guidelines,” Joyce Ackerbaum Cox, an attorney with Baker & Hostetler, wrote in the bank’s motion to dismiss the lawsuit.

For example, Fifth Third includes a phone number, “listed prominently on the website … dedicated solely to providing customers access to the same information available on the website,” Cox wrote.

Amalgamated Bank in New York, KeyCorp in Cleveland, SunTrust Banks in Atlanta and Valley National Bank in Passaic, N.J., also filed motions to dismiss ADA-related lawsuits.

The pending legislation would make it easier for banks and other businesses to fend off such suits.

The House in February voted 225-192 in favor of a bill that would require consumers to wait up to six months after informing a company of a noncompliant website before filing a lawsuit. It would also promote the use of alternative dispute resolution mechanisms.

A group of Democrats in the Senate have said they will oppose any such changes to the ADA; the Senate has not taken action on the bill.

If Congress does not approve the measure to repeal some provisions of the ADA, any bank, credit union, school or other organization that maintains a website is susceptible to a lawsuit unless it adopts comprehensive compliance measures, Triner said.

That is because the law, as it is currently written, simply does not address the online world.

“The ADA was written before any of these problems existed,” Triner said. “There isn’t the political will to reform it because it was written to be intentionally vague.”