ADA Gone Wild

January 8, 2018 at 9:06 am Leave a comment

Judging by the number of phone calls I’ve gotten on this subject in the last few days, I thought now would be a good time to answer some basic questions about the latest developments when it comes to ADA compliance and websites.

    1. Are other New York State credit unions getting threatened with lawsuits claiming that their websites violate the ADA? Yes they are. I don’t want anyone to think that something they tell me privately will end up in a blog. The reason I am writing this is because the issue has become generic enough that it’s impacting many credit unions.
    2. Are these lawsuits all being brought by the same people? No. We started hearing about ADA lawsuits about a year ago at the time the initial lawsuits were being brought at the urging of an organization representing blind and disabled individuals. But lawsuits are like viruses, left unchecked they mutate and it now appears that other lawyers and plaintiffs are jumping on the bandwagon.
    3. What are my legal responsibilities? That’s still an open question. Unlike so many other issues with which credit unions deal on a daily basis, regulations have never been promulgated addressing the question of whether the ADA applies to websites. At least one set of litigants who bring these lawsuits point to the Website Content Accessibility Guidelines as providing an ADA compliant standard. As I mentioned in this recent blog, one of the first cases in New York to address this issue and now at least one court has held that the ADA does apply to websites. But this is an issue that is still very much up for debate. Incidentally, this whole issue could be resolved if the Justice Department were to issue regulations answering this question once and for all or if Congress would amend the ADA to specifically exempt out websites.
    4. What are the legal issues? 42 U.S.C §12182 provides that no person shall be discriminated against on the basis of disability “in the full and equal employment of the goods, services, facilities…of any place of public accommodation by any person who…operates a place of public accommodation.” The question is, are websites places of public accommodation or was the statute designed specifically to ensure access to physical locations such as branches?
    5. What are the risks of non-compliance? The ADA is somewhat unique among Federal statutes in that there are no specific statutory damages for violations. Instead, plaintiffs can get an injunction forcing a violating party to get up to speed. But here’s a caveat: Successful plaintiffs are entitled to attorney fees.
    6. Why does that make a difference? Critics argue that this creates a somewhat perverse incentive. If parties negotiate in good faith to settle their disputes without officially starting a lawsuit, there isn’t much money to be made. In contrast, a winning party can move for attorney’s fees. In other words, a statute that was designed to facilitate discussions can instead be a means for law firms to make a quick buck. See Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278, 1281–82 (M.D. Fla. 2004)
    7. What should I do now? Each individual credit union should make its own decision of course, based on its own set of facts. One thing I would do is find out how close your website is to being ADA compliant. You may find that your website can rather cheaply and quickly comply with the ADA. I also would suggest however, that this is an issue you ultimately should seek legal advice on. Don’t assume that settling is automatically the best thing to do. Especially if you’re being threatened with damages to which the plaintiffs are not entitled.
    8. What does the future hold? The industry is aggressively pursuing a statutory fix that would address this issue once and for all. There is also increasing involvement with some of these lawsuits. The Association recently sent out an email communication on the issue and more will be forthcoming.    

 

Entry filed under: Legal Watch, New York State. Tags: , .

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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