A lawsuit filed Dec. 29 against Highlands Union Bank in U.S. District Court in Abingdon is one of many of its kind. Businesses across industries and the nation have faced threatened litigation and lawsuits related to website accessibility for people who are blind or visually impaired.
Virginia ADA lawsuits
Title III of the Americans with Disabilities Act [ADA], passed in 1990, outlaws discrimination based on disability with regard to the “full and equal enjoyment” of any place of public accommodation.
“The courts and the Department of Justice have made it clear that the ADA covers websites,” said lawyer Jamie LaPlante of Porter Wright Morris & Arthur. “The underlying problem is that there are no regulations, so it is unclear which ones are covered and what the standard for accessibility is.”
The Department of Justice has delayed outlining ADA regulations specific to websites for several years. At least one federal judge has dismissed an ADA website case because such regulations are lacking.
“It would violate the company’s due process rights for it to be sued for failing to comply with the ADA before the DOJ has promulgated specific website accessibility standards,” Melvin Tull, general counsel for the Virginia Bankers Association, said of the case.
Still, other judges have allowed similar lawsuits — most notably against Five Guys and Blick Art Materials — to move forward.
“The ADA is more than 25 years old now so one would hope [businesses] would have brought stuff into compliance, whether there’s clear guidance available under the regulations or not,” said Colleen Miller, executive director of the disAbility Law Center of Virginia, a non-profit advocacy organization for people with disabilities.
“Regulations and guidance documents are helpful, but there’s nothing in the law that says you get a waiver without them,” she added.
While the DOJ lacks explicit regulations, the World Wide Web Consortium [W3C] has outlined best practices for website accessibility [Web Content Accessibility Guidelines 2.0]. The Blick Art Materials settlement, for instance, required that the company’s website meet these guidelines by the end of 2019.
While ADA website regulations were originally on the DOJ’s agenda for 2018, it is unclear whether that timeline will stand, as it was approved under the previous administration.
The lawsuit against Highlands Union Bank in Abingdon was filed by Keith Carroll, a blind man from Fairfax County. He is represented by Strelka Law Offices. Carroll has filed 36 lawsuits against banks and credit unions in Virginia since September.
Carroll uses a screen reader — a piece of assistive technology in which a computerized voice reads a website’s text and image descriptions to the user — to access the internet. The banks in question do not follow WC3’s well-established guidelines, according to Carroll’s complaints, which would make their websites compatible with screen readers.
The majority of Carroll’s cases have been filed in Alexandria and Richmond district courts. The lawsuits did not target banks in the Western District of Virginia until last month.
In the Western District, Carroll has also filed against New People’s Bank, American National Bank and Trust Co., Roanoke Valley Credit Union, DuPont Community Credit Union, Blue Eagle Credit Union and MemberOne Federal Credit Union. The latter three were dismissed on Dec. 8, Nov. 20 and Dec. 11, respectively.
Altogether, 13 of Carroll’s lawsuits have been dismissed. For such cases, an average of 46 days elapsed between the date the lawsuit was filed and its termination.
Lawsuits related to the inaccessibility of websites surfaced in 2006, according to LaPlante. The leading jurisdictions for website accessibility cases under the ADA are Florida, New York, Pennsylvania, and California.
“The lawsuits that are being filed are being filed by a limited number of plaintiff-side attorneys who focus almost exclusively on these types of cases,” she said. “There also is a trend that plaintiffs who file website cases are filing many of them in the jurisdiction in which they live.”
Tull also noted that a number of banks and credit unions in Virginia have been accused of non-compliance by a California law firm.
“These outrageous lawsuits are designed to shakedown certain industries, such as banks, which come under the definition of a public accommodation,” Dann H. Bowman, CEO of Chino Commercial Bank, told the Bristol Herald Courier. “This action has nothing to do with equal access to financial services, and everything to do with abusive lawsuits and extortion.”
Chino Commercial Bank, based in California, faced an ADA lawsuit in 2017 as well. The plaintiff was represented by Pacific Trial Attorneys, also based in California — a law firm that has been brought in “pro hac vice,” a legal term for adding an out-of-state attorney to a case, for several of Carroll’s cases in Virginia.
“Highlands Union Bank, as well as every other bank I am familiar with, makes great efforts to comply with the ADA,” the bank’s CEO Tim Schools told the Bristol Herald Courier in a statement. “As an example, we have invested to ensure each of our facilities is ADA compliant, our ATMs offer Braille and voice capabilities, we offer automated telephone banking, and we offer a live call center.”
“Internet banking is a fast-growing medium, as are its rules and regulations,” Schools added. “The banking industry and its vendors are aware of the opportunity to broaden access to all individuals and working diligently to achieve that goal.”
Miller said she worries that non-compliance is a slippery slope.
“The rapidly changing nature of the technology could provide an excuse for any business to always say they should not comply,” she said.
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January 05, 2018
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