Class Actions Have Little Class Involved

part 1…

Class action claims of website accessibility discrimination have been increasing recently. Two new complaints were filed last month for ADA (American’s with Disabilities Act) accessibility discrimination. These complaints allege that the National Basketball Association’s and Home Depot’s websites are not accessible to blind users.

Also in November, Scribd agreed to update its access to eBooks to make them compatible with screen access software for the blind, and the U.S. General Services Administration settled with the American Council of the Blind requiring that the GSA make significant changes to its website to make it more accessible. Along with this, the agreement creates a process in which members of the blind community will test and provide feedback on future changes to the GSA’s website, SAM.gov.

The fact that there are no specific rules or regulations regarding website accessibility does not stop the lawsuits. When the ADA was created, the internet was in its infancy stage and internet requirements were not included. While the ADA does not address website accessibility, it has been on the Department of Justice’s radar for years.

The ADA is broken down into three titles.  Title I deals with employment, and protects qualified individuals with disabilities against discrimination.  Title II of the ADA applies to State and local government entities, and protects disabled individuals from discrimination on the basis of disability in services, programs, and activities provided by State and local government entities.  Title III prohibits discrimination on the basis of disability in the activities of most private businesses that are open to the public.  Neither of the titles specifically call-out website accessibility for disabled users.

The Department has taken the position that title II also covers Internet Web site access. Public entities that provide services through web-based applications (e.g., renewing library books or driver’s licenses), or that communicate with their constituents or provide information through the Internet, must ensure that individuals with disabilities have equal access to such services or information, unless doing so would result in an undue financial and administrative burden or a fundamental alteration in the nature of the programs, services, or activities being offered. Along with this, the Department has consistently interpreted the ADA to cover websites that are operated by public entities and stated that such sites must provide their services in an accessible manner or provide an accessible alternative to the website that is available 24 hours a day, seven days a week.

Reinforcing their position, the Department has released two Notices of Proposed Rulemakings (NPRM), and announced that more are in the future.

  • In 2010, the DOJ released a Notice of Proposed Rulemaking indicating that it was considering amending its regulations implementing title II and III of the ADA to require website accessibility and it sought public comment regarding what standards, if any, it should adopt for web site accessibility. It also questioned whether the Department should adopt coverage limitations for certain entities, and what resources and services are available to make existing web sites accessible to individuals with disabilities. The Department also solicited comments on the costs of making web sites accessible and on the existence of any other effective and reasonable feasible alternatives to making web sites accessible.
  • In January 2014, the Department of Justice published a Notice of Proposed Rulemaking proposing amendments to both its title II (state and local governments) and title III (public accommodations and commercial facilities) ADA regulations in order to incorporate the statutory changes set forth in the ADA Amendments Act.

In fourth quarter 2015, the DOJ announced that it will be publishing separate NPRMs addressing web site accessibility pursuant to titles II and III of the ADA.  The Department expects to publish the title II (state and local governments) NPRM early in fiscal year 2016.  The Department believes that the title II web site accessibility rule will facilitate the creation of an important infrastructure for web accessibility that will be very important in the Department’s preparation of the title III web site accessibility NPRM.  Consequently, the Department has decided to extend the time period for development of the proposed title II web site accessibility rule and include it amount its long-term rulemaking priorities.  The Department expects to publish the title III web site accessibility NPRM during fiscal year 2018.

Rather than waiting for new rules, credit unions should ensure that their websites are in compliance with ADA. The Department provides resources for making websites accessible. They provide the Accessibility of State and Local Government Websites to People with Disabilities guidance. They also refer web developers to the Section 508 Standards, which Federal agencies must follow for their own websites, and to the GSA, for an online course for web developers (yes, this is the same agency that just settled because their own website was not in compliance).

A more comprehensive resource is the Web Content Accessibility Guidelines developed by the Web Accessibility Initiative. These guidelines help designers make web pages as accessible as possible to the widest range of users, including users with disabilities. The Web Accessibility Initiative is a subgroup of the World Wide Web Consortium — the same organization that standardizes the programming language followed by all web developers.

NWCG also has access to an application that we can run against the credit union’s website.  A portion of the application review is included in our website reviews, but can also be done independently.  The full application checks for broken links, browser compatibility, accessibility, web standards validation and search engine issues.  If you would like us to run the application against your website, let us know.  Usually, we can have the report back to you within a day.

Part 2 of my class actions will involve overdraft fees – yes, this is taking an upswing again…

Leave a Reply

Your email address will not be published. Required fields are marked *