Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by places of public accommodation. It directs businesses to make “reasonable modifications” to standard business practices when serving people with disabilities. Under Title III of the ADA, the definition of “public accommodation” includes banks. As such, banks, credit unions and other financial institutions must give equal treatment to all customers, with and without disabilities.
Obligations of Covered Entities
Covered entities are required to provide aids and services unless doing so would result in an “undue burden,” which is defined as a significant difficulty or expense. However, if a particular aid or service would result in an undue burden, the entity must provide another effective aid or service, if possible, that would not result in an undue burden.
In determining whether a particular aid or service would result in an undue burden, a covered entity should take into consideration the nature and cost of the aid or service relative to their size, overall financial resources, and overall financial picture. Denials due to cost are often difficult cases to defend. However, covered entities are not required to provide any particular aid or service in those rare circumstances where it would fundamentally alter the nature of the goods or services they provide to the public.
Common Situations Faced By Financial Institutions
1. Use of Auxiliary Aids and Services to Facilitate Communication
On Jan. 31, 2014, the Department of Justice Office of Civil Rights published a guide to help meet the communication requirements of those individuals who have vision loss, hearing loss, or speech disabilities. (Under these guidelines, it is noted that the ADA places responsibility for providing effective communication directly on covered entities.)
Some examples of ADA compliant methods of communication with someone with vision loss include: (1) providing information in large point or in Braille; and (2) providing information electronically for use with a computer screen-reading program.
Examples of ADA compliant methods of communication with someone with hearing loss include: (1) providing a qualified sign language interpreter; and (2) providing written materials and printed script of stock speech.
Examples of ADA compliant methods of communication with someone who has speech disabilities include: (1) providing a qualified speech-to-speech transliterator; (2) keeping pencil and paper on hand so the person can write out the words that staff cannot understand; and (3) allowing more time to communicate with someone who uses a communicating board or device.
Ultimately the goal is to provide an aid or service that will be effective given the nature of what is being communicated and the customer’s method of communicating.
2. ATM Machines
The 2010 ADA Standards for Accessible Design lists the traits of ADA-compatible ATMS in minute detail (for example, voice guidance and tactile buttons). After a financial institution fits its ATMs to comply with such rules, the machines must remain compliant. However, periodic hurdles may arise not as a result of negligent or bad intent (for example, the voice system may occasionally malfunction and require maintenance). The ADA regulations permit isolated or temporary interruptions in service or access due to maintenance or repairs as long as the interruption does not persist beyond a reasonable period of time.
3. Teller Counters
The ADA guidelines note that teller counters in stores, banks, and hotels that lack an ADA compliant counter are permitted to have a folding shelf attachment that allows a disabled person to write and handle materials that are exchanged back and forth.
4. Websites
Courts are split regarding whether the definition of “public accommodations” is limited to physical spaces. In those cases in which a website has been considered a public accommodation, courts have required websites to comply with Web Content Accessibility Guidelines 2.0. There are three different levels of conformance within the WCAG 2.0 guidelines :
Level A: minimum level of conformance
Level AA: level relied on by the courts and the Department of Justice
Level AAA: maximum level of conformance
The current trend in the district courts is that websites fall within the ADA’s definition of “public accommodation,” regardless of their connection to goods or services provided by the entity. For example, the Eleventh Circuit recently ruled in Gil v. Winn-Dixie Stores, Inc., that a website is not a place of public accommodation. However, in this same opinion the Court acknowledged that a website can still violate the ADA if it presents an intangible barrier to someone with a disability. The cost for a financial institution to bring their websites in conformity with WCAG 2.0 could be far eclipsed by just a handful lawsuits filed by savvy individuals benefiting from the current uncertainty within the courts.
5. Mobile Applications
There is only one circuit court of appeals opinion regarding ADA accessibility to a mobile application: Robles v. Domino’s Pizza, LLC. In Robles the Ninth Circuit ruled that the ADA applies to a pizza chain’s mobile application because it connected the pizza chain’s customers to the goods and services of its physical restaurants. Other district courts have also extended the ADA to mobile applications. It is likely that other jurisdictions will eventually follow the Robles opinion and expand the ADA to mobile applications.
Compliance with Title III of the ADA involves multiple factors. The size of the covered entity, the level of accommodation requested, and burden to the entity all must be considered when developing policies and procedures to reasonably accommodate individuals who are considered disabled under the ADA.
Chase Stoecker is an associate in McGlinchey’s Ft. Lauderdale office. He defends employers in a wide range of employment matters, including cases brought under Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. He also represents financial institutions in a variety of consumer financial litigation matters.
