Credit unions have been subject to the requirements of the Americans with Disabilities Act (ADA) since it was signed into law in 1990. In part, Title III of the law applies to businesses that are a “place of public accommodation,” such as credit unions. Sometimes, the extent to which the requirements of Title III apply to websites can arise which may be impacted by recent litigation in this area.
Application and Exceptions
Title III of the ADA provides a list of twelve categories of private entities that are considered places of public accommodation if their operations affect commerce. Banks and other service establishments are listed, and the law has been interpreted to include credit unions. Title III prohibits credit unions from discriminating against an individual on the basis of disability in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations” of the credit union. The law imposes several requirements and restrictions which include, in part:
- a prohibition against having “eligibility criteria” that tend to screen out individuals with disabilities;
- a requirement to make “reasonable modifications” to their policies, practices, or procedures necessary to serve individuals with disabilities;
- a requirement to ensure no individual with a disability is “excluded, denied services, segregated or otherwise treated differently” because of the absence of “auxiliary aids and services;” and
- an obligation to remove architectural barriers and communication barriers in existing facilities or to provide alternative methods if removal of the barrier is not achievable.
There are some exceptions to those requirements — for example, there is an exception to the requirement to provide modifications or auxiliary aids if doing so would fundamentally alter the nature of the credit union’s services or facilities. This can be limited and may be impacted by court decisions in the jurisdictions where a credit union operates.
Some of Title III’s requirements can be straightforward, like overt discrimination. Other provisions can be less clear. For example, compliance with the requirement to provide “auxiliary aids and services” can be more challenging. The ADA and section 36.303 of the ADA’s implementing regulations define “auxiliary aids and services.” For individuals with a hearing impairment, this can include providing qualified interpreters (either on-site or through video remote interpreting services); exchange of written notes; real-time computer-aided transcription services; voice, text and video-based communications products and systems; or captioned telephones. For individuals with a visual impairment, this can include providing qualified readers, taped texts, audio recordings, Braille materials, screen-reader software, magnification software, and large print materials. Credit unions may want to review their policies, procedures and practices to determine if they are providing adequate auxiliary aids and services.
While the ADA clearly applies to a credit union’s branches and in-person or telephone communications with members, there has been significant debate and litigation in recent years regarding the applicability of Title III to a credit union’s website or mobile application (app).
The U.S. Court of Appeals for the Eleventh Circuit issued an opinion on this topic in April 2021. In that case, Winn-Dixie grocery stores was sued by a plaintiff with a visual impairment who claimed the incompatibility of Winn-
Dixie’s website with his screen-reader software violated Title III of the ADA. The Eleventh Circuit held that a website cannot be a “place of public accommodation.” While the ruling was heralded by some as a major win for credit unions and other businesses subject to the ADA, the scope of the ruling is fairly limited. First, it only applies in the Eleventh Circuit (Alabama, Florida, and Georgia), so courts in other jurisdictions may rule differently. Secondly, it could be appealed.
Thirdly, and most importantly, while the ruling concluded a website itself is not a “place of public accommodation,” many businesses which own websites still are. The Eleventh Circuit ruling left open the possibility that a website could violate Title III of the ADA if it creates an “intangible barrier” that prevents a person with a disability from fully and equally enjoying “the goods, services, facilities, privileges, advantages or accommodations” of a place of public accommodation, such as a credit union. The court determined that Winn-Dixie’s website did not create an intangible barrier to the full and equal enjoyment of the goods, services and facilities of Winn-Dixie’s physical stores because the website only provided users with the ability to select coupons and to refill prescriptions. In other words, even if the website had been accessible, persons with disabilities would still need to visit Winn-Dixie’s physical locations to purchase goods. The court noted that the limited utility of the website — such as the fact that it did not offer users the ability to buy goods or services online — was a factor in its decision.
Not all courts are in agreement on the topic. The Ninth Circuit Court of Appeals, with jurisdiction in California, Alaska, Arizona, and Hawaii, considered the issue of Title III’s application to websites and mobile apps in 2019, in a case where Domino’s Pizza was the plaintiff. The court determined that a website or mobile app could be viewed as an “auxiliary aid and service” of a place of public accommodation, and that failure to make the website or mobile app accessible could be a violation of Title III. The Ninth Circuit also considered the utility of the website. Because the Domino’s website and mobile app facilitates access to their food and services — such as by allowing users to order food through the website without ever needing to physically visit a Domino’s restaurant — the court found that Title III did apply to the website and app.
How This Impacts Credit Unions
Many credit union websites and mobile apps offer the same products and services that a member could receive in-person at a branch. Some credit union members conduct their banking activities entirely through the credit union website or app without physically visiting a branch location.
Meanwhile, many credit unions have already taken steps to ensure their websites are accessible to those with visual impairments as credit unions are generally committed to assisting all members. Doing so would not only be a great member service to any members with disabilities, but it could also mitigate ADA litigation and compliance risk. Finding ways to assist those with disabilities can not only limit ADA risk, but, perhaps more importantly, is reflective of credit unions’ commitment to serving all members. NAFCU and its members strongly support the protections set forth under the ADA but believe these efforts are best achieved through clear guidance and standards for website compliance, not through meritless and costly lawsuits. The association will continue to seek clarity for credit unions.
Credit unions may want to take steps to make their websites and mobile apps as accessible as possible to individuals with disabilities. Sometimes, this includes considering private industry guidelines for website accessibility, such as the Website Content Accessibility Guidelines 2.1 from W3C. While not a regulatory requirement, some courts have pointed to these kinds of industry standards as a way for websites to be accessible.
Nick St. John is regulatory compliance counsel for NAFCU.