ICBA Members and Community Banks Released From ADA Liability

By Bob Monroe

Many community banks received letters from advocacy group Access Now alleging that the banks' websites violated the Americans with Disabilities Act (ADA) for the visually impaired in provision of electronic information technology, including website, mobile apps, accessibility, online banking, mobile banking, ATM services, and telephone banking (collectively, Electronic Banking Services). These letters generally offered to resolve these alleged claims by working with Access Now's attorneys to bring the banks' websites into compliance with the ADA or face potential lawsuits.

On November 20, 2017, the Independent Community Bankers of America (ICBA) announced it had reached an agreement with Access Now to stop mass distribution of letters to community banks threatening to bring actions against the banks for alleged violations of the ADA. Access Now and its members, through its counsel Carlson Lynch Sweet Kilpela and KamberLaw LLC, had sent letters to ICBA member banks, as well as non-members, offering to settle purported claims against such banks for alleged violations of the ADA. The ICBA and Access Now reached a mutually-agreeable settlement whereby: a) as a reaffirmation of its ongoing commitment to encourage accessibility for visually-impaired persons, ICBA will adopt and distribute to its current members a Restatement of Voluntary Access Principles referenced below that are acceptable to Access Now; and b) Access Now, on behalf of itself and its members, will release ICBA member banks—as well as banks eligible for membership with assets of $50 billion or less—from all claims related to the provision of Electronic Banking Services and the ADA.

ICBA Statement of Voluntary Access Principles

As a reaffirmation of its existing commitment to access, ICBA adopts this Statement of Voluntary Access Principles:

  1. ICBA encourages its members to make commercially reasonable efforts to convey public web commerce transaction functionality in a manner that is accessible to their visually impaired and low vision customers, potential customers, and companions to such customers or potential customers. While the United States Department of Justice (DOJ) has not adopted a website accessibility standard, one acceptable set of voluntary principles for accessibility is the World Wide Web Consortium’s Version 2.0 of the Web Content Accessibility Guidelines . Nothing herein is intended to suggest that members should adopt an accessibility standard greater than that which may ultimately be adopted by the United States Department of Justice, or that equal access may not lawfully be provided in an alternative fashion.
  2. Training. ICBA encourages its members to conduct periodic training for their employees responsible for electronic banking service accessibility to promote progress toward accomplishing the goal described in Paragraph 1.
  3. Electronic Banking Service Accessibility Guidelines. ICBA encourages its members to develop Electronic Banking Service accessibility guidelines designed to promote increased independent use of the member’s Electronic Banking Services by their customers and potential customers with disabilities, as well as their companions. The details of the accessibility policies adopted, if any, will be in the sole discretion of each individual member.
  4. Target Implementation Date. In the event formal guidelines are not issued by the Department of Justice in 2018, ICBA encourages its members to implement these Principles on or before December 31, 2020.
  5. Website Access Information Incorporated into Existing Customer Service. ICBA encourages its members to post notification and contact information in connection with their provision of Electronic Banking Services for their customers and potential customers who claim to encounter access barriers. Members are encouraged to provide a reasonably prompt response to customer/potential customer inquiries or complaints related to any alleged access barriers.
  6. Third Party Vendors. ICBA encourages its members to utilize their existing vendor management due diligence process and communicate the goal that customer and potential customer facing digital content provided by that vendor conform to these Principles.

All community banks should endeavor to adhere to all the Principles set out above and to watch for DOJ website accessibility standards when released.

For more information on this subject, or if you are currently in negotiations with Access Now or its attorneys over your website, please contact Bob Monroe, George Verschelden, or the Stinson Leonard Street attorney with whom your regularly work, to determine the impact of the agreement on your negotiations.

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