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Web content accessibility concerns for websites

Monday, OBA President and CEO Roger Beverage participated in a conference call with the ABA and some of his colleagues across the country. A Pittsburgh law firm, Carlson Lynch Sweet, Kilpela and Carlson, has notified at least seven banks across the country (and it will be more than that soon) that their websites do not comply with the Web Content Accessibility Guidelines (WCAG - 2).

The issue is whether your website has made accommodations to allow visually impaired persons to “read” what is on your site. The lawsuits that have been – and will be – filed targeting banks of all sizes are trying to force banks to settle these claims, which include costs and attorney fees.

This issue has already jumped up and bitten restaurant owners and others costing them a great deal of time and money. In one case, a Colorado company incurred a $4,000 penalty and more than $100,000 in attorney fees because it was not in compliance with the statutory provisions.

I know from our colleagues at the Colorado Bankers Association that more than 60 cases have been filed against Colorado restaurants charging they violated this requirement. They also report that litigation has expanded beyond the technical violations and is now often focused on ADA-related website accommodation.

Unbelievably, there are no published rules or regulations regarding ADA compliance for websites as yet; the regulations are expected to be released in 2018. I know that sounds nuts, but in spite of that fact, a number of realty companies are also facing litigation from this law firm.

Banks are next.

The organization being used to file claims is the Advocates for Individuals with Disabilities Foundation, Inc. To date, these claims have not been website-related.

The Foundation is a relatively new LLC, having filed paperwork with the Arizona secretary of state in January 2016. It appears to be owned by the Advocates for American Disabled Individuals Trust (AID), also formed in January 2016.

When organizations have this type of layering, it's difficult to find the actual businesses officers and owners. We have only been able to find an attorney representing the organization; we have not been able to identify the board of directors, officers or owners.

The main focus of the foundation seems to be litigation:

“To date, through the hundreds of enforcement actions which Advocates for Individuals with Disabilities have filed, we and our attorneys are proud to have nearly a 100% success rate of bringing about compliance in all of our cases, either voluntarily through early settlement or by subsequent court order,” according to their website.

The AID website contains a How to Find a Violation checklist:

“Extensive Check List of Investigations. The AID Foundation represents persons with disabilities who have been denied the right of access and or rights granted though the ADA. An extensive ADA Checklist of Existing Facilities can be found here. If you have experienced or if you become personally aware of a facility that does not comply with the ADA requirements outlined in the ADA Checklist of Existing Facilities, please fill out an Investigation Request Form and we will look into investigate the violations.” This quote is from the AID website.

The list provided in the link above is very detailed and may be used by banks and other businesses to ensure they do not have violations.

Just in case you're curious, here are the requirements as provided by the Department of Health and Human Services:

To check your website for accessibility, use the accessibility checklist published by the U.S. Department of Health and Human Services (1194.22 Web-based intranet and internet information and applications):

• Every image, video file, audio file, plug-in, etc. has an alt tag;
• Complex graphics are accompanied by detailed text descriptions;
• The alt descriptions describe the purpose of the objects;
• If an image is also used as a link, make sure the alt tag describes the graphic and the link destination;
• Decorative graphics with no other function have empty alt descriptions (alt= "");
• Add captions to videos;
• Add audio descriptions;
• Create text transcript;
• Create a link to the video rather than embedding it into web pages;
• Add a link to the media player download;
• Add an additional link to the text transcript;
• The page should provide alternative links to the Image Map;
• The <area> tags must contain an alt attribute;
• Data tables have the column and row headers appropriately identified (using the <th> tag);
• Tables used strictly for layout purposes do NOT have header rows or columns;
• Table cells are associated with the appropriate headers (e.g. with the id, headers, scope and/or axis HTML attributes);
• Make sure the page does not contain repeatedly flashing images;
• Check to make sure the page does not contain a strobe effect;
• A link is provided to a disability-accessible page where the plug-in can be downloaded;
• All Java applets, scripts and plug-ins (including Acrobat PDF files and PowerPoint files, etc.) and the content within them are accessible to assistive technologies, or else an alternative means of accessing equivalent content is provided;
• When form controls are text input fields use the LABEL element;
• When text is not available use the title attribute;
• Include any special instructions within field labels;
• Make sure that form fields are in a logical tab order;
• Include a 'Skip Navigation' button to help those using text readers;

We are looking for potential solutions for our member banks and related businesses. There are several things we are going to do in conjunction with our colleagues in other states:

• Seek allies from the disabled community because frivolous litigation takes money away from actual compliance, which is what they want and need;
• Look for other business groups as allies – all businesses are impacted by this new issue;
• Look for a federal legislative solution;
• We will look at what, if anything, we can do at the state level but we're not optimistic;
• Alert banks and other businesses in an effort to help them minimize their exposure;
• Collect information regarding claimants, plaintiffs and firms involved in these claims/suits.

If you have received a letter/settlement agreement regarding ADA website compliance, please contact us at roger@oba.com.


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